Faculty files suit vs. JAG



More than half of Yale Law School’s faculty members filed a federal lawsuit Thursday against the U.S. Department of Defense, claiming a law that forces the Law School to open its doors to military recruiters is unconstitutional.

In the lawsuit, 44 Yale law professors — including Law School Dean Anthony Kronman and international law professor Harold Koh — argue the Defense Department’s interpretation of the 1995 Solomon Amendment violates professors’ First Amendment rights. The Solomon Amendment requires all colleges and universities receiving federal funding to allow military recruiters on campus.

Until recently, many American law schools, including Yale’s, had banned recruiters because the military’s “don’t ask, don’t tell” policy on homosexuality violates the schools’ nondiscrimination clauses. The Law School faculty have considered filing suit against the Defense Department since October 2002, when the Law School first did not apply its decades-old nondiscrimination policy to recruiters in an effort to preserve over $350 million in federal funding for the University.

The suit was filed in the U.S. District Court in New Haven. The Defense Department is required to file a response motion within 30 days.

Pentagon officials declined to comment.

Law School professor Owen Fiss, one of four leading plaintiffs in the suit, said he thinks the military’s interpretation of the Solomon Amendment is unconstitutional.

“[The Defense Department's] policies demean the lives of our gay and lesbian students and are clearly unconstitutional,” Fiss said in a written statement. “This isn’t free association; it’s forced association, and it’s wrong.”

Thirty-two law professors declined to join the suit, according to data on the Law School’s Web site. Law professor George Priest said he supports his colleagues, yet did not join the suit because he feels the president and Congress, not the courts, should decide the issue.

“I harbor no support for any institution that discriminated against gays,” Priest said. “[But] I don’t think my colleagues are going to win this lawsuit.”

Law professor Robert Burt, the plaintiffs’ spokesman, said he thinks his colleagues have a strong chance to win in court.

“The last time I looked at the Constitution of the United States, constitutional rights were not a matter to be decided by the president or Congress by a majority vote,” Burt said. “When individual constitutional rights are at stake as they are here, the courts have a role.”

Yale administrators will continue to negotiate with Pentagon officials before they decide whether to file a suit on behalf of the University, Yale President Richard Levin said. He said Yale officials expect to meet with Pentagon officials in Washington next week.

Some professors have called on the University to litigate. Yale’s would be the first such suit filed by a college or university and, some professors said, establish Yale as a national leader on the issue.

An anonymous group of law schools and the nation’s largest organization of law professors sued the Defense Department and five other federal agencies Sept. 19. A group of University of Pennsylvania law professors filed an independent military recruiting suit Oct. 1. Penn officials said this week the university does not plan to file its own suit.

— Staff Reporter Chris Fortson contributed to this report.

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