A threatening exchange of letters dating back to 1984 reveals a surprisingly long and contentious dispute between Yale administrators and Pentagon officials over the military’s recruitment policy, recent court documents show.
In a 90-page declaration filed Sept. 19 in federal court, Yale law professor William Eskridge detailed a heated debate surrounding the Law School’s 2002 decision to suspend its nondiscriminatory recruitment policy. The declaration was filed as part of a lawsuit that began less than two weeks ago, when a coalition of law schools and professors sued the U.S. Department of Defense and five other federal agencies.
The Law School, which had previously barred recruiters from campus because of the military’s “don’t ask, don’t tell” policy, began allowing the visits to preserve more than $300 million in federal funding.
The filing includes letters from U.S. Army Col. Michele Miller warning Yale President Richard Levin that the government would consider denying Yale “major federal funding” if the University did not allow military recruiters on campus.
The documents made public the decade-long dispute between Yale and the military, a move that may jeopardize the University’s standing with the Pentagon, said Sharon Frase, an associate with Heller Ehrman, the New York law firm representing the plaintiffs in the suit.
“The documents attached to Eskridge’s declaration are somewhat sensitive,” she said.
In the lawsuit, the plaintiffs claim the 1995 Solomon Amendment, a law that forces schools to open their doors to military recruiters or forfeit federal funding, is unconstitutional. Some schools have banned military recruiters because the military’s policy on homosexuality violates their anti-discrimination policies.
Officials at the Pentagon and at the U.S. District Court in New Jersey, where the suit is filed, declined to comment on the case Monday.
Eskridge’s declaration highlights Yale’s “unique” position with the military. A University official said the declaration as a whole does not accurately reflect Yale’s policy and position, even though it includes letters written to and by Levin and other administrators,
“We have been seeking clarification of the Defense Department’s position and that’s taken many months,” said the University official, who asked to remain anonymous. “Regrettably, the current brief does not give an accurate description of what Yale’s policy is or what Yale’s position is.”
In a May 8, 1984 letter to Army Major Gen. Hugh Clausen, then-Law School Associate Dean Jamienne Studley said the Law School’s policy does not bar Judge Advocate General recruiting personnel from interviewing on campus, but does bar visits by all employers, military and non-military, who “do not subscribe to the school’s nondiscrimination standards.”
Eighteen years later, Levin wrote to Miller on Sept. 26, 2002, and said the University would allow military recruiters on campus, so long as they adhere to the Law School’s nondiscrimination policy.
“The University intends to pursue a further agency or judicial determination of whether the Law School’s long-standing practices and policies, as amplified in our recent communications, satisfy the requirements of the Solomon Amendment, as we believe they clearly do,” Levin said.
Last year, faced with the possibility of losing $350 million in federal funding, the Law School suspended its long-standing nondiscrimination policy and allowed military recruiters to participate in its campus interview programs for the 2002-03 academic year. Many other American law schools also made exceptions to their nondiscrimination policies to preserve federal research funding.
When Miller pointed out that the Law School declined to permanently suspend the nondiscrimination policy in a March 3 letter, Levin responded a week later, calling Miller’s statement “premature and not properly founded.”
The Defense Department filed a response to the plaintiffs’ complaint Sept. 26, asking federal judge John Lifland to dismiss the case. The plaintiffs countered that brief Monday, asking Lifland to quickly schedule a hearing, said Joshua Rosenkranz, chief counsel for the plaintiffs.
“[The plaintiffs] are defending the law,” Rosenkranz said. “There was nothing in there that I didn’t expect and I expect they will put up a vigorous defense. I spent most of my career litigating against the government and what we got from the government was exactly what I expected — there were no surprises.”
The Forum for Academic and Institutional Rights, the leading plaintiff in the suit, is keeping anonymous the names of its member law schools to protect federal funding. Yale Law School Dean Anthony Kronman said last week that Yale does not belong to FAIR, though some Yale professors have been involved in planning the lawsuit and currently sit on FAIR’s board. In addition to FAIR, the plaintiffs include a coalition of law schools and the Society of American Law Teachers, which includes nearly 900 law professors from over 160 law schools.