Yale Law School’s effort to restrict access to military recruiters in response to the military’s “don’t ask, don’t tell” policy may have suffered a defeat before the Supreme Court earlier this month, but law professor Robert Burt — the lead plaintiff for a suit brought by Law School faculty — told the Yale Political Union Wednesday night that the fight is not over yet.
Burt spoke to an audience of about 60 students about the future of Yale’s case and the rights of the recruiters. In Rumsfeld v. Forum for Academic and Institutional Rights — an organization of 36 law schools, including Yale — the nation’s highest court decided 8-0 against FAIR on March 6. Burt’s case, Burt v. Rumsfeld, also challenged the Solomon Amendment, which permits the government to withhold funding from a university if any sub-element of that university denies access to military recruiters, but Burt won at the district court level in January 2005.
Burt said he is still deciding what to do with the case given FAIR’s defeat, but he said he hopes to continue to pursue the issue of military recruitment with a focus on the rights of the university, in contrast to the angle of First Amendment free speech that FAIR took in its case.
“[The FAIR case] was not our lawsuit,” Burt said. “They missed what I think is a core issue.”
Burt also criticized FAIR for insisting on an expedited hearing, which he said weakened its case.
Burt emphasized the role of the University as a place where all students feel comfortable, regardless of differences such as sexual orientation.
“Universities should speak to academic concerns,” he said. “Discrimination against gays and lesbians disrupts that.”
The Law School does not receive any federal funding, Burt said, but other Yale institutions — particularly the School of Medicine — would be devastated by the loss of funds.
“Yale University cannot afford to lose $300 million a year,” Burt said. “I think there is a fundamental unfairness.”
Burt also said the Law School does not prevent recruiters from coming to campus, but refuses to actively help in recruiting students.
“Yale’s position is very clear,” he said. “Military recruiters, like all discriminatory employers, could not have access to extra assistance from Career Services.”
Students attending the debate had mixed reactions to Burt’s arguments.
Errol Saunders ’06, a member of the Independent Party, said he does not think Burt’s new case is necessarily stronger than the FAIR case.
Lucia Diaz-Martin ’09, a member of the Party of the Right, said she thought Burt’s arguments were legitimate, but that he did not acknowledge the potential damage of impeding recruiters.
“His thoughts were definitely valid and he supported them well, but he didn’t think of the overarching consequences,” she said.
Still, Ashley Bowman ’06 said she agreed with Burt’s arguments on a personal level.
“I personally would feel insulted if I saw military recruitment posters up all over,” she said.
Although FAIR was defeated in the Supreme Court partly because of an argument that military recruiting is important for national security, Burt said, his fact-finding showed that the military’s case for this point was weak.
“That actually was factually unsupported in our case,” he said. “Our policy has zero practical impact.”
The district court ruling in Burt’s favor last year was made on the basis that the Law School’s policy is not harmful to the military, Burt said.
In closing, Burt said he believes the Supreme Court’s ruling against FAIR reflects most negatively on the court itself.
“I think that what we did was offer the Supreme Court the opportunity to stand for critically important issues,” he said. “That is much more a judgment against them than against our skill as constitutional lawyers.”