Direction may change for Yale suit against DoD

A year to the month since Yale Law School faculty members filed suit against the U.S. Department of Defense over military recruitment policy, the case is still awaiting adjudication and, due to new legislation, the context of the arguments in the case may soon change.

Last October, 44 law professors filed the suit, following the Law School’s suspension of its non-discrimination policy against military recruiters in order to qualify the school for federal funding. The 1995 Solomon Amendment threatens a university’s eligibility to receive federal funding if the school does not allow on-campus military recruitment equal in scope to that of private employers.

The Yale faculty suit challenging this amendment in light of the military’s “don’t ask, don’t tell” policy, which the faculty said is discriminatory, is just one of several university suits around the country. With the potential signing of a new bill that would require formalized enforcement of the amendment, those involved in the suits said they worry that some of their arguments against the amendment in its current state will lose applicability.

While Pentagon spokesperson Lt. Col. Joe Richards said it is against Department of Defense policy to comment on pending litigation, including the one against the Judge Advocate General recruitment program at Yale, he said the “don’t ask, don’t tell” policy of the military is promulgated by the president. The Department of Defense does not have the authority to change the policy, he said.

“Until such a policy is lifted, the Department of Defense will have to follow it,” Richard said.

Yale receives about $350 million annually in federal funding. In the fall of 2002, the Yale Law School voted to temporarily suspend its non-discrimination policy. Some Law School faculty members filed suit soon after.

“The military was taking advantage of our resources and, in the meantime, in my judgment, our statutory constitutional rights were being violated. We could not wait for the University to take the initiative and go to court,” plaintiff and Yale law professor Robert Burt said.

But the nature of the law suits currently awaiting litigation, including a separate suit filed by Yale Law School students, is subject to a potential change if the bill awaiting presidential approval becomes law, making arguing the case on statutory grounds much more difficult. The bill would be a formalized culmination of a three-year increase, beginning in 2001, in the enforcement of the amendment, said University of Pennsylvania Law School professor Stephen Burbank, a lead plaintiff in a Penn suit against the Department of Defense. The amendment was not strictly enforced in previous administrations.

“We had a compromise that allowed us to preserve our anti-discrimination policy — something changed, one can only imagine it was the national administration,” Burbank said.

The current Yale suit is based upon both a statutory argument and a constitutional argument. Burt said that the Law School has alleged for some time that its policy towards military recruiters was not in violation of the Solomon Amendment, and the school should not have been threatened with withdrawal of federal funding. If the bill is signed into law by the president, Yale Law School would have to focus the suit’s argument primarily on the unconstitutionality of the statute rather than what they said is their stronger statutory argument against the Department of Defense, which they claim has infringed upon their first amendment rights through the Solomon Amendment.

“Realistically speaking, it makes it harder to win the case, but speech rights and the right to academic freedom are still very powerful arguments in constitutional terms,” Burt said. “I remain certain the judge should rule for us.”

During the past year, the progress of the case has been slow-going, Burt said.

Last spring, Judge Janet Hall of the Connecticut District Court ruled against the Department of Defense, deciding that the Yale faculty plaintiffs had standing and that the case was ready for adjudication. The judge has yet to set an actual date for the hearing.

Burt said that he suspects the case has been delayed because the judge is waiting to see if the president signs the new legislation.

The Yale Law School suit was not the first filed against the Department of Defense. In September of 2003, the Forum for Academic and Institutional Rights, or FAIR, a coalition of law schools and students, filed the first suit. As FAIR is not school-specific, its suit relies on constitutional arguments which may be harder to prove in the courtroom, said Yale Law School Professor Jed Rubenfeld, another plaintiff in the Yale suit.

The Connecticut District Court does not permit judges to comment on pending cases from chambers, a representative for Judge Hall said.

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