Law schools turn on legal heat in JAG debate



Long-standing disputes about military recruitment policies between the Pentagon and many of America’s top law schools, including Yale Law School, have intensified in recent weeks. Law schools, professors and students are marching to court, claiming the government’s interpretation of a 1995 law is unconstitutional.

In the wake of the terrorist attacks on Sept. 11, 2001, the U.S. Department of Defense has more aggressively enforced the 1995 Solomon Amendment, some professors said. In the last two years, the Defense Department has threatened to cut billions of dollars in federal funding — over $350 million at Yale — from colleges and universities that restrict military recruiters from their campuses.

Many American law schools, including Yale’s, banned recruiters from campus because the military’s “don’t ask, don’t tell” policy on homosexuality violates the schools’ decades-old nondiscrimination policies. In October 2002, the Law School waived its nondiscrimination policy to military recruiters in an effort to preserve the University’s federal funding.

The Forum for Academic and Institutional Rights, or FAIR, a group of anonymous law schools, sued the Defense Department on Sept. 19, claiming the Solomon Amendment violates colleges’ and universities’ First Amendment rights.

The Solomon Amendment, signed into law as part of former Republican House Speaker Newt Gingrich’s “Contract with America,” was not aggressively enforced until months after the 2001 inauguration of President George W. Bush ’68, Boston College law professor and FAIR President Kent Greenfield said.

Greenfield said the Sept. 11 attacks gave the government the “boldness” to interpret the Solomon Amendment more aggressively than it did during the terms of President Clinton LAW ’73. The recruiting dispute between the military and law schools has grown beyond one over gay rights, becoming one over free speech, he said.

“It’s broader than a gay rights issue,” Greenfield said. “They are trying to use government funds to regulate individuals — it’s about the government using its incredible power to squelch dissent.”

Pentagon officials declined to comment.

In 1978, the Law School became one of the first law schools in the nation to include sexual orientation in its nondiscrimination policy. Since then, Law School graduates and professors have been influential in landmark legal victories for gay rights.

The Solomon Amendment was drafted in 1995 by a Republican-controlled Congress to send a message to colleges and universities such as Yale that some members of Congress felt were too liberal, Greenfield said.

“It was about sending a message to law schools and to universities in general that they were being more liberal than Congress or the Defense Department wanted them to be,” Greenfield said. “[Republican Congressional leaders were] trying to punish Universities for being what they thought was out of step with a conservative agenda which was on the rise.”

With at least half of Yale’s law professors and a coalition of law students preparing to file two separate lawsuits against the Defense Department over the military’s recruiting policies, some professors have called on the University to file an independent suit. This would be the first such suit filed by a college or university and, some professors said, the suit would establish Yale as a national leader on the issue.

Yale President Richard Levin said the administration will continue to seek a permanent solution by continuing to negotiate with Pentagon officials before deciding whether to file a lawsuit.

Law School Dean Anthony Kronman said the law professors will not jeopardize Yale’s federal funding with their impending lawsuit.

“We would never put at risk the overwhelmingly large financial interests of the University in federal funding,” Kronman said. “We have a point of principle to defend, but we will not defend this — at the expense of programs vital to the University and the world at large.”

Yale is not alone in taking a cautious approach when negotiating with the military. Both Harvard and Columbia Universities have stated publicly they are not involved in any of the military recruiting lawsuits. While a group of University of Pennsylvania law professors filed an independent military recruiting suit Oct. 1, Penn officials said the school will not file its own suit.

With over $500 million in federal funding at risk, Penn made exceptions to its nondiscrimination policy for military recruiters earlier this year. Penn Law School Vice Dean Joanne Verrier declined to say whether the school was a member of the FAIR.

“The theory of that suit is that it’s an anonymous group of law schools that have signed on,” Verrier said. “Certainly our hope here is that we will be able to fully enforce our nondiscrimination policy — and if it’s a legislative change, that certainly would be welcome here.”

Harvard Law School officials did not return repeated requests for comment.

Yale law professors plan to file their suit in federal court as early as this week. A federal judge is expected to rule on the FAIR lawsuit within two weeks.

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