The U.S. Supreme Court ruled unanimously Monday that colleges receiving federal funds must open their campuses to military recruiters, dealing the largest setback yet to Yale Law School’s battle against the Pentagon’s “don’t ask, don’t tell” policy.
The court’s decision upholds the 1994 Solomon Amendment, which allows the federal government to withhold funds from universities that bar Pentagon recruiters. In the 8-0 decision, Chief Justice John Roberts wrote that while campus communities remain free to voice their disapproval of the military’s message, the high court was unconvinced that the presence of military recruiters violated a school’s right to associate.
“The Solomon Amendment neither limits what law schools may say nor requires them to say anything,” Roberts wrote. “Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto ‘Live Free or Die.'”
Justice Samuel Alito LAW ’75 did not participate in the case — Rumsfeld v. Forum for Academic and Institutional Rights, or “FAIR” — since he was not on the bench when oral arguments were heard on Dec. 6.
During the past several years, the Yale Law School community has been particularly engaged in this debate. Last November, members of the faculty filed an amicus curie brief with the Supreme Court in the FAIR case decided today. Two years ago, 45 professors successfully sued the Pentagon in Burt v. Rumsfeld after the federal government threatened under the Solomon Amendment to withhold more than $300 million in federal funding from Yale if military recruiters were not allowed on campus.
In Burt v. Rumsfeld, the plaintiffs ultimately won an injunction that allowed Yale’s barring of military recruiters from campus in acknowledgement of the discriminatory nature of the military’s policy against open homosexuals. The case is currently pending before the U.S. Court of Appeals, Second Circuit.
Faculty and students who support the pending lawsuit said they were fearful of and disappointed by Monday’s decision. Some said the court’s decision — and its use of sweeping language — threatens academic freedom and the University’s tolerance policies. But others said the court’s decision came as no surprise given the skepticism expressed by justices during oral arguments, and said they welcomed the decision as an affirmation of the military’s equal right to solicit on campus.
Although not all Law School professors joined the challenge to the Solomon Amendment, among the 45 professors who voiced their opposition was Law School Dean Harold Koh.
“Obviously, we are disappointed that the court was not more receptive to the First Amendment claims that underlay our defense of our nondiscrimination policy,” Koh said in a statement released Monday afternoon. “Their ruling seems to require law schools to endorse the motto, ‘Join the military, but not if you are gay or lesbian.'”
But law professor Peter Schuck said that while he is personally opposed to the military’s discriminatory policies against gays, he did not join the Law School’s suit because he felt it was the wrong approach to opposing the ban on openly gay soldiers.
“The Law School’s circuitous effort to use their students as a kind of way of expressing the school’s disapproval of ‘don’t ask, don’t tell,’ is not a sound pedagogical practice,” Schuck said. “I think [Monday’s decision] is the right decision, and so I’m very pleased. I think that it reaffirms the right of the government to condition its money on compliance with governmental policies.”
Schuck, who said he was only surprised that the case was decided unanimously, said such federal aid conditioning has been used to enforce civil rights legislation.
Robert Burt, the lead plaintiff in the pending lawsuit, said Monday was “not one of the happier days.” But he said there are differences in the faculty case — which the Supreme Court has already refused to hear — that may distinguish it from the FAIR case enough that the Court of Appeals will uphold the district court’s ruling.
“The argument presented by the lawyer for the FAIR case was not the strongest possible statement of the position that the Yale Law School plaintiffs took,” Burt said. “We have a special claim that we have autonomy in running our affairs because we are a university, and there’s a tradition of special respect for universities, and a special protection … to protect students from discriminatory or demeaning behavior. That argument was simply not presented to the court, and they didn’t deal with it.”
Still, Burt said he was especially disappointed by the breadth of Monday’s ruling, which he said could open the door to federal legislation forcing universities to offer military preparedness courses. The ruling, he said, grants undue power to the federal government, comparing it to warrantless searches.
Last week, Koh testified before the Senate Judiciary Committee in opposition to domestic eavesdropping conducted without warrants. At the hearing, he said President George W. Bush ’68 has misinterpreted the scope of his authority following the Sept. 11 attacks.
But Department of Defense spokeswoman Lt. Col. Ellen Krenke said she did not expect the ruling to have large implications, since only three schools — New York Law School, Vermont Law School and William Mitchell College of Law — had not complied with military recruiting.
“Equal access to law schools and all schools is important,” she said. “For our recruiting, it’s crucial to have applicants from diverse backgrounds.”
Mixed student reaction
For some law students, several of whom camped outside the Supreme Court in December to hear oral arguments, Monday’s decision was an undesirable watershed moment that came after years of protesting military presence on campus.
“I think it’s just a shocking opinion,” said Rudy Kleysteuber LAW ’07, co-chair of the Student/Faculty Alliance for Military Equality. “There’s no other way to put it.”
Fadi Hanna LAW ’06, co-chair of OutLaws, the group representing lesbian, gay, bisexual and transgender members of the Law School community, said in an e-mail that he was also shocked by the ruling.
“That it was unanimous sends a very strong signal that the court has no sense of the harm that anti-gay discrimination on our campus imposes on us as students,” he said. “It said that military recruiters are not part of our ‘expressive association,’ and that recruiting is conduct, not speech — but the sense of hurt we feel when they recruit on our campus, and we have to pass their interview room knowing we are ineligible, suggests differently.”
But several members of the Yale Law School chapter of the Federalist Society said they welcomed the decision.
Angus Dwyer LAW ’06 said that he agreed with Roberts’ assertion that the decision would not adversely effect free expression, and that he was impressed by Roberts’ clarity and consensus-building.
“My inclination is to doubt that there will be any chilling effect on free speech at the Law School,” Dwyer said. “Opposition to the military’s ‘don’t ask, don’t tell’ policy remains pretty widespread. To the extent that people feel strongly about that, they’ll continue to protest [and] organize student boycotts enforced by social shaming sanctions.”
Hugh Baran ’09, coordinator for Yale College’s Queer Political Action Committee, said the decision was a setback to gay activism, but will not significantly derail efforts to achieve equal rights for all students, regardless of sexual orientation.
Still, Hanna said the court sidestepped the question of whether a university can simply reject federal funds if they oppose the presence of military recruiters, and ruled instead that the government can forcibly mandate Yale Law School to accept Pentagon presence.
“Since when can the government force the military into private institutions?” Hanna said. “I would point, half serious, to the Third Amendment’s prohibition on forcing private parties to quarter soldiers. The government can no more require Yale Law School to host soldiers than it can you or me, in our homes.”
William Baude LAW ’07, who said the decision did not come as a surprise in light of the justices’ comments during oral arguments, said that all sides had acted badly.
“I think that the military should not exclude openly gay servicemen, that the law schools should not exclude discriminatory employers, and that Congress should not force the Law School to include employers it does not wish to,” he said.
Yale Law School is holding a forum on free speech Monday evening that is unrelated to the lawsuit, but some students said the discussion is bound to yield student sentiment regarding the decision.
Precedents and next steps
Burt has not yet heard from the appellate court regarding the Yale faculty’s pending lawsuit, but he said he expects that the court had been awaiting guidance from Monday’s decision.
Kleysteuber, who helped to lead a separate lawsuit in opposition to military recruitment — SAME & OutLaws v. Rumsfeld, which was dismissed in light of the faculty’s initial win — said they may file their lawsuit again if the faculty lose on appeal. But he said the organizations are not entirely convinced that they should oppose the high court’s decision.
“We don’t know from a moral perspective what the right thing to do is,” Kleysteuber said. “We are morally very committed to the principle that ‘don’t ask, don’t tell’ is an ethically wrong policy … however, another of our principles is in the rule of law. We abide by decisions of the court. This case is kind of putting us in an awkward position.”
Still, Koh said he believes many members of the Law School community will step up their efforts to protest “don’t ask, don’t tell” in the near future.
“The court’s decision is clearly an invitation for law schools to engage in more speech, not less, in the months ahead,” Koh said. “Many of us here at Yale Law School plan to accept that invitation to continue to speak out against the government’s discriminatory military recruiting practices.”