Yale Law School has been a hotbed of political activism for decades, but over the course of the last year, students and faculty members at the Law School have been particularly vocal and unified in their outspoken opposition to the 1995 Solomon Amendment.
Through staging protests, wearing pins at interview days, and — most recently — filing two lawsuits, members of the Law School community have become embroiled in national controversy over the Solomon Amendment, which requires universities to grant military recruiters equal access to their students or face losing all federal funding.
While the Law School community has expressed a wide range of opinions on the issue, the most popular sentiment among students and faculty members has been one of opposition to the Solomon Amendment.
Jana Freed LAW ’06, co-chair of the Student/Faculty Alliance for Military Equality, a group that has organized Solomon Amendment protests, said many people have expressed strong support for SAME and its work at the Law School.
“We’ve had overwhelming support from the students and from the faculty as well,” Freed said.
Ethel Higonnet LAW ’05, a supporter of the anti-Solomon Amendment protests, said students found it difficult not to take sides on the issue last fall. She said the issue was brought home for many previously indifferent students when protestors posted pictures of Law School students who could not serve in the military because of their sexual orientation.
“When the issue was personalized, people realized how much their classmates cared — it became hard to be ambivalent,” Higonnet said.
An ongoing dispute
The Solomon Amendment controversy has been a “very large issue this year and last,” Law School Dean Anthony Kronman said.
“There never has been a time when it wasn’t an issue,” Kronman said. “But it has grown from something I would characterize as an annoyance into a direct moral and legal challenge to the integrity of our community.”
The current controversy first arose in 2001, when the administration of President George W. Bush ’68 began to strictly enforce the Solomon Amendment. Yale Law and other law schools had previously restricted the access of military recruiters to their career offices because the military’s “don’t ask, don’t tell” policy on gays and lesbians in the military had prevented recruiters from signing non-discrimination clauses. In the spring of 2002, the Department of Defense notified the Law School that barring military recruiters from recruitment fairs violated the terms of the Amendment, and the University was threatened with the prospect of losing federal funds.
Yale has received over $350 million annually in federal funding in recent years.
In the fall of 2002, the Law School decided to temporarily suspend its non-discrimination policy in order to preclude the loss of federal funds. Soon thereafter, Law students began wearing gags and pins and carrying rainbow flags to recruitment fairs to protest the presence of recruiters from the Air Force, the Army and the Navy Judge Advocate General corps at the Law School’s career day.
The conflict escalated in Sept. when the Forum for Academic and Institutional Rights — a largely anonymous coalition of law schools that does not include Yale — filed suit against the Department of Defense. FAIR’s suit alleged that the Solomon Amendment was unconstitutional and had been unfairly and incorrectly applied to law schools. Three more suits followed in quick succession, filed on similar grounds by a group of law professors and students at the University of Pennsylvania, 44 professors at Yale Law School, and most recently SAME and OutLaws, another student group at Yale Law.
Since October, the chorus of Solomon Amendment litigants has also been joined by students and faculty at Harvard Law School, who each filed amicus briefs on behalf of FAIR. Four other amicus briefs on FAIR’s behalf have also been filed in recent months.
Students join up
For many students at Yale Law, the Solomon Amendment and related protests and litigation have been the defining issues of this year. Even students who did not play an active role in the protests said they could not help but notice the presence of protestors at the Law School’s career days.
Freed, the SAME chair, said the recruitment issue draws the most attention among the general student body when recruiters arrive on campus for the Law School’s two annual interview days. The issue and SAME have in some ways “taken over [her] life,” she said.
“For a lot of students, it kind of rears its head twice a year: at our fall interview program and at our spring interview program,” Freed said. “By and large, the biggest effects have been through our interview program. Every student there is aware of our issues with the military recruiters.”
Protests have nevertheless been “very visible on campus,” said Andrew DeFilippis LAW ’06, who said he has not participated or been personally involved in protests against the presence of military recruiters at the Law School.
Law School students said the issue was particularly volatile last fall. It became difficult not to take a stance on the issue, they said.
SAME co-chair Fadi Hanna LAW ’06 said students feel particularly strongly about the recruitment issue because it affected so many members of their community.
“This is about discrimination against your fellow students at Yale,” Hanna said.
Freed said the very presence of recruiters from the Department of Defense, who she said have “effectively forced their way into the interview program,” made the recruitment days uncomfortable for gay and lesbian students.
“You get to the interview program and you walk down the hall and there are all these doors,” Freed said. “When you walk by that door [where the military recruiters are located], it’s as if there’s a sign there that says ‘gays need not apply.’ It sets up this almost antagonistic relationship that you don’t want to have with a prospective employer.”
Other students mentioned that the larger debate over gay rights has in many ways overshadowed the dissent surrounding the Solomon Amendment.
Felicia Medina LAW ’06, who said she had participated in some events related to Solomon Amendment protests but was not a named plaintiff in any of the lawsuits, said the issue had taken on special importance this year because of the contentiousness of gay rights issues.
“I think because of the election next year and because gay rights in general are such a polarizing issue, this has been the most important issue on campus along with faculty diversity,” Medina said.
Faculty play a ‘supportive’ role
While students at the Law School have in many ways been the most vocal protestors of the military recruitment issue, faculty members have played an equally significant role in the legal battle over the Solomon Amendment.
Law School Professor Robert Burt, a lead plaintiff in the faculty lawsuit, said the military recruitment controversy has been the “most important institutional issue” for him this year.
“There are some weeks when it takes almost full days of my time,” Burt said. “It’s taken a lot of my time. On the other hand, I’m very busy with other issues — it’s been a crowded semester.”
Burt said the rest of the Law School faculty has been helpful and encouraging on the issue.
“There’s been a lot of discussion and collaboration among the faculty,” Burt said.
Kronman said the military recruitment issue has not been divisive in the faculty “as far as I have detected.” He said the faculty strongly supported the Law School’s position on the issue, including the temporary suspension of the non-discrimination policy.
“It is important to remember that the faculty in September of 2002 voted unanimously to endorse the position that we would permit military recruiters to participate in our school sponsored recruitment programs only on the understanding that we would seek, that the [Law School] would seek a definitive determination of the question whether [or not] we were required by law to do so,” Kronman said.
Students expressed their gratitude for the faculty’s active role in the Solomon Amendment debate.
Higonnet said the support of faculty members has encouraged students who are involved with the issue.
“The professors and administration’s response has been really heartening to me,” Higonnet said.
Freed said faculty members “have been as supportive as they feel they are able.”
A ‘small conservative minority’
Despite appearances, not everybody at the Law School opposes the Solomon Amendment as vociferously as some members of SAME and OutLaws. Indeed, a small minority of students at the Law School supports the Solomon Amendment and the presence of military recruiters at the Law School.
While opposition groups have not been especially vocal in their dissent, their opinions have become apparent in various ways.
OutLaws member Adam Sofen LAW ’05 said while at the Law School “virtually everyone is on our side on this issue,” he said a certain number of students still interviewed with military recruiters despite the presence of protestors. He said the number of these students has increased recently.
“We have noticed that there were more people who interviewed with JAG this year,” Sofen said.
DeFilippis, who said he is affiliated with the Yale Law Republicans but did not wish to speak for the group, said some students think the protestors use excessively extreme methods in their opposition to the Solomon Amendment.
“I don’t agree with the military’s policy, but I could see how some of the tactics used to oppose it may be intimidating to people genuinely interested in pursuing a career with JAG,” DeFilippis said. “You have to be careful not to be disrespectful of people who serve in the military, or of those who would like to interview with JAG despite its policy.”
While some students expressed opposition to the protests and lawsuits, the Solomon Amendment has nevertheless had a much more cohesive rather than divisive effect among the student body, Freed said.
“I think, not to be overly cliched about it, it’s actually brought people together to some extent,” Freed said.
Nevertheless, some students, including Federalist Society President Alex Cooke LAW ’04, expressed disagreement with students and faculty members’ opposition to the Solomon Amendment.
Cooke said in a Feb. interview with the News that he thought Law School students and faculty members were making the military recruitment issue into a larger issue than it deserved.
“I kind of think they’re making a mountain out of a mole-hill,” Cooke said. “The litigation is all about preventing the military from renting a hotel room at interview week.”
Even before the Department of Defense changed its enforcement of the Solomon Amendment, “the military had access to student contact information and, in fact, could come on-campus to engage in JAG recruiting activities if invited by a student or student group,” Cooke said in an e-mail.
“I don’t see how forcing the Law School to permit JAG to rent a hotel room so that it can interview students who volunteer for such an interview differs fundamentally from allowing JAG to come on campus if invited by a student or student group,” Cooke said.
Higonnet said the military recruitment may have been divisive for students like Cooke who opposed the protests, but that it was a unifying force for the rest of the student body.
“I think it was polarizing in terms that the small conservative minority at the Law School felt marginalized and isolated,” Higonnet said.
Recent developments have put the future of the Solomon Amendment and associated litigation in doubt.
The U.S. House of Representatives passed a bill on Mar. 30, the ROTC Military Recruiter Equal Access to Campus Act, which would strengthen the Solomon Amendment and clarify it to ensure that military recruiters have equal access to campuses. The bill also puts additional federal funding at risk to universities that do not give equal access to military recruiters.
U.S. Rep. Mike Rogers, an Alabama Republican and sponsor of the bill, said in an e-mail on March 24 that the recent lawsuits played a part in the decision to introduce the bill for debate.
“While addressing recent court cases is one issue with this bill, even more important is we help ensure military recruiters have equal and fair access to our country’s most highly educated students, just like any other employer recruiting on campus, as we enter the vital spring recruiting season,” Rogers said.
Burt said that if this bill passes the Senate and is signed into law, it will require a different approach to the faculty lawsuit.
“It will signal a change in our lawsuits, because it will take away the statutory argument we now have,” Burt said. “It definitely says that the only track we have is the constitutional arguments, which are much less likely to succeed in court.”
But Burt said the faculty lawsuit will continue regardless of the bill’s success in Congress.
“This thing is going on whatever happens,” he said.
Whether or not the bill passes, students involved with the protests expressed concern about the future of Solomon Amendment protests.
Higonnet said many of the students opposing the presence of military recruiters at career fairs are worried that students will lose interest if the issue continues to be unresolved in the future.
“A lot of us are really worried about that, especially since the number of interviews with JAG went up this year,” Higonnet said. “The military is winning as far as this becomes routine.”
But others, like Hanna, were more optimistic. Hanna said that recent developments like the House bill will keep students involved and interested in the issue.
“I think people will continue to be interested in it as long as it’s an issue,” Hanna said. “As with this recent bill, as it becomes more and more flagrant on the part of the government, I think people will get even more excited.”
Kronman said he thinks the Law School’s official approach to the issue will not change when Law Professor Harold Koh assumes the deanship in July.
“Harold has been from the start a vigorous and articulate champion of the position of the Law School,” Kronman said.
Freed said she hopes students eventually no longer need to care, when the issue is finally resolved.
“I hope people will lose interest — I hope it will become a non-issue,” Freed said. “My personal hope is that the Department of Defense will decide it’s important for schools to get out the message of non-discrimination. If that doesn’t happen, I don’t think students will get apathetic.”
In the meantime, military recruiters will continue to attend the Law School’s career days, the Solomon Amendment lawsuits will continue to be debated in court, and the protests will continue unabated.