Yale files brief on JAG ban

Yale filed a brief with the U.S. Supreme Court Wednesday arguing that law schools have the right to ban military recruiters from their campuses without facing a loss of government funding, marking the first time the University itself has taken a stance on the issue in court.

A group of 44 Yale Law School professors, who have taken their own legal action on the issue, filed its own brief Tuesday separate from the University but regarding the same suit, which was brought by the Forum for Academic and Institutional Rights against the U.S. Department of Defense. Both amicus, or “friend of the court,” briefs were filed in support of FAIR, an anonymous coalition of law schools maintaining that the government can not legally withhold federal funding from universities that refuse to aid military recruiting efforts on campus.

The nation’s high court will hear the case Dec. 6. The court’s ruling will likely affect the outcome of the separate lawsuit brought by the 44 Yale professors charging that the Solomon Amendment, the law authorizing the government’s denial of funds, is unconstitutional.

A number of law schools, including Yale, have denied help to recruiters from the military’s Judge Advocate General program on the grounds that the military’s “don’t ask, don’t tell” policy on homosexuality violates universities’ nondiscrimination doctrine. The Pentagon has argued that it needs access to law schools in order to recruit a larger and more talented pool of JAG lawyers.

“The presence of military recruiters on campus also does not force educational institutions to convey the message that they support the restrictions on service by homosexuals in the military,” the Defense Department argued in a recent brief filed in the FAIR lawsuit. “Students and the public readily understand that when recruiters visit campus they speak for their employers, not for the educational institution.”

Yale’s amicus brief — a statement of support by an interested third party — was submitted cooperatively with six other prominent universities: Columbia, Cornell, Harvard, New York University, the University of Chicago and the University of Pennsylvania.

Yale law professor Robert Burt, the lead plaintiff in the Yale faculty members’ lawsuit, said the universities’ official entry in the legal battle is an important boost for FAIR’s case.

“The institutions carry weight that the individual faculty members don’t,” he said. “These are powerhouse institutions, and they will get a very respectful hearing from the Supreme Court.”

Law School Dean Harold Hongju Koh said the University’s brief argues that the federal government is constitutionally not allowed to use the threat of losing funding as leverage over universities.

Koh, one of the 44 signatories on the faculty suit, said the faculty’s brief is more specific, arguing that the Defense Department has ample opportunity to recruit students without the Law School’s help — a contention supported by the district court’s decision.

“That’s the kind of thing that can only be established in a case involving a real record and a real institution,” Koh said. “The government effort to coerce the Law School and the University is really for symbolic purposes only.”

The faculty brief makes additional specific arguments, claiming that the Defense Department violates the First Amendment by restricting academic freedom and forcing professors to associate with discriminatory policies. In addition, the faculty request that their case be heard before the Supreme Court at the same time as the FAIR case.

FAIR President Kent Greenfield, a Boston College law professor, said he thinks the amicus briefs will bring to light fresh arguments in FAIR’s case against the Defense Department.

“They add arguments that might not otherwise get full hearing before the court,” he said.

Yale is protected from losing about $350 million in federal funding due to a temporary injunction in the Yale faculty lawsuit issued by a federal district court judge. The government so far has only denied funds to three small law schools under the Solomon Amendment, but Harvard Law School announced Tuesday that it would cooperate with Pentagon recruiters to avoid losing over $400 million in funding.

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