Supreme Court hears JAG arguments

The U.S. Supreme Court heard arguments Tuesday in the Rumsfeld v. FAIR case, which will decide whether the federal government can withhold funding from universities that do not allow military recruiters on campus.

Approximately 50 Yale law professors filed an amicus brief on behalf of FAIR, the Forum for Academic and Institutional Rights, which represents a group of 36 law schools.

The status of Yale’s federal funding will be decided based on the results of a circuit court appeal, which will take into account the decision of the Rumsfeld v. FAIR case, said Rudy Kleysteuber LAW ’07, who was present at the Supreme Court hearings and also co-chairs OutLaws, an alliance of gay law students at Yale. Another appeal to the U.S. Supreme Court may arise from the circuit court decision, but Kleysteuder said he thought this was unlikely.

Although a ruling is expected to take several months, court members already appeared supportive of laws that force schools accepting federal funding to allow military recruiters on campus.

“There’s the right in the Constitution to raise a military,” Chief Justice John Roberts said, according to the Associated Press.

But Justice David Souter suggested the banning of military recruiters on campus may interfere with their ability to perform their responsibilities.

“The law schools are taking a position on First Amendment grounds, and that position is in interference with military recruiting, no question about it,” Souter said, according to the Associated Press.

Yale President Richard Levin said federal funding is significant for the Law School.

“I think the Law School always recognized that it did not want to put in jeopardy federal funding,” Levin said. “Until there was a preliminary ruling in this lawsuit, they waived their policy rather than risk a loss of federal funding.”

Last January, the U.S. District Court of Connecticut found the Solomon Amendment unconstitutional in the case of Burt v. Rumsfeld, a separate suit brought by a group of Yale law professors. The court’s injunction protected Yale from being denied $350 million in federal funding under the Solomon Amendment, which allows the federal government to deny grants and contracts to colleges and universities that ban military recruiters from their campuses.

Many law schools, including Yale’s, have banned recruiters as a protest to the military’s “don’t ask, don’t tell” policy on homosexuality on the grounds of their nondiscrimination recruitment policies.

Yale Law School professor Robert Burt, the lead plaintiff in Burt v. Rumsfeld, said the proceedings did not address the central issue of the case, the protection of students from being insulted and demeaned.

“Somehow the core of this case was not talked about,” Burt said. “Maybe that means the justices did not understand the core of the case. Hopefully, when they return to their chambers and consult with their clerks, they will get more of a sense of what this case is about.”

The Supreme Court’s decision will have significant implications for Yale, New York University law professor and FAIR founder Sylvia Law said.

“For the time being, Yale will enjoy its protected status, but however the case comes out in the Supreme Court, Yale will be affected by that,” Law said.

Kleysteuber said the justices mentioned Burt v. Rumsfeld but failed to accurately portray the details of this earlier case.

“The justices brought up our lawsuit at several points at the discussion today and didn’t quite get some key facts right on our case,” Kleysteuber said. “It’s unfortunate that our case couldn’t be helpful.”

Yale Law School Dean Harold Koh, Law School administrators, members of the Law School faculty and several law students attended yesterday’s Supreme Court proceedings.

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