As of this year, Yale Law School is the only federally supported institution left in the nation that is protesting the military’s “Don’t Ask, Don’t Tell” policy toward homosexuals by withholding equal access to military Judge Advocate General recruiters — but for the first time, the school is inviting the military to campus to tell its side of the story.
Despite the U.S. Supreme Court’s unanimous ruling this March in Rumsfeld v. FAIR — upholding the constitutionality of the 1994 Solomon Amendment, which permits the federal government to withhold funds from universities that bar Pentagon recruiters — the Yale Law School faculty voted earlier this year to press on with its separate but similar lawsuit protesting the Solomon Amendment, to be argued later this year before the 2nd Circuit Court of Appeals. While an injunction from 2004 continues to give Yale Law School the exclusive right to deny equal access to military recruiters without risking federal funding losses, Law School Dean Harold Koh this month extended invitations to several JAG recruiters to speak on panels at the school this Thursday and Friday.
“We are genuinely interested in hearing the position of the Armed Services as to why they are maintaining this discriminatory policy,” Koh said Monday night. “If the services want to make a case to our students that they should work for the JAG corps despite this policy, our invitation plainly offers a chance to do so.”
Though Navy JAG recruiters have already declined the invitation, Koh said he is hopeful that a member of the Army JAG will join discussion of Don’t Ask, Don’t Tell on the Friday panel. While it is unlikely that the Pentagon will send a representative to defend its policies, Koh said the panels will be held regardless, as a forum for general discussion.
The talk is expected to draw radically different points of view, as some faculty and students have begun to question the merits of the Law School’s pending lawsuit, since the Supreme Court has already rejected many arguments against the Solomon Amendment. While some are calling for Yale to adopt alternative strategies to avoid alienating the government or wasting resources on a lost cause, many others — Koh in particular — are advocating solidarity in the face of a mounting legal and ideological challenge.
“[The panel] will be a good occasion to return to the core issue in the case, which is why the military chooses to exclude openly gay, lesbian, and bisexual men and women from serving their country, particularly when they have not explained what national interest that policy serves,” Koh said.
In a letter obtained by the News, Lt. David Shull of the Navy JAG wrote in response to Koh’s invitation, “My purpose in coming … as a United States Navy representative is to provide information about a career in the Navy JAG Corps to any interested students or faculty members,” rather than to defend or debate a policy.
Jennifer Zeldis, a spokeswoman for Navy JAG, said recruiters are still interested in coming to Yale — though they will not be actively provided with resources by the Law School, JAG recruiters are still welcome to freely interact with students — but she said it would be inappropriate for an officer to speak.
“When folks are on panels … sometimes they represent their personal views and sometimes they’re representing their official capacity,” she said. “[Koh] is asking [the recruiter] to come to Yale in an official capacity as a recruiter, but it’s only appropriate for the recruited to do recruiting duties, not express personal opinions on any of these things. We don’t want it to get mixed up.”
Deborah Marcuse LAW ’08, co-chair of SAME, the Student/Faculty Alliance for Military Equality, which is co-sponsoring the panel along with the Yale Law Veterans Association, said the discussion will still be worthwhile even if the military does not join. The cross-section of perspectives on Don’t Ask, Don’t Tell will range from former JAG recruiters to veterans who oppose Don’t Ask, Don’t Tell.
“Hopefully we’ll come out of both of these panels with some ideas,” Marcuse said. “The point of them is to have a semblance of where we are now and where we should be going.”
Students and faculty planning to attend the panel expressed diverging views on the wisdom of Koh’s current plan to continue fighting the military’s policy.
Law professor Peter Schuck said he supports the panel but is disappointed in his fellow faculty members for continuing their efforts on the lawsuit.
“It’s a waste of time and energy and is misguided idealism,” said Schuck, who is opposed to Don’t Ask, Don’t Tell. “It’s a matter of principle and consequence. I think the Law School should allow recruiters precisely the same access under the same conditions as every other recruiter.”
But Fredo Silva ’04 LAW ’08, an openly gay student and a panel coordinator, said the lawsuit and continued protest against military recruiters are not just about winning today — a perspective he said he plans to bring to the discourse later this week.
“I don’t think the point is that we think we’re going to win, but we’re trying to highlight that we want to,” he said. “Was FAIR wrong to bring the case [against the Solomon Amendment] even though they lost 8-0? Right now, they lost. Maybe 100 years from now, people are going to realize it was wrongly decided.”
Silva said he is cautiously optimistic about Yale’s pending case, as it has a different set of facts than did the FAIR lawsuit — including a factual record and new arguments about academic freedom.
Stephen Vaden LAW ’08 said he would disagree with these arguments, though. The Law School, he said, is unfairly making it difficult for students to explore military career options, since JAG recruiters are not allowed to participate in the school’s formal interview program, creating what Vaden termed Yale’s “own version of Don’t Ask, Don’t Tell.”
“It’s somewhat disingenuous for [Yale] to continue to press on with their claim in some fanciful hope that there is something in the fact or pattern about the Yale Law School that would separate it from every law school in the United States,” he said.
The first panel, called “Achieving Equality: Strategies for Defeating Don’t Ask, Don’t Tell,” will be held at 4:30 p.m. on Thursday at the Law School. The second panel, which poses the question, “Should gays be able to serve in the military, and if not, should you serve?” is scheduled for Friday at 10:10 a.m.