An appeals court ruling has struck a second blow to Yale Law School’s efforts to avoid aiding military recruiters who discriminate against students on the basis of their sexual orientation.
The case, Burt v. Gates, addressed the authority of the law school to ban military recruiters from its biannual career and interview fairs if they refuse to sign the school’s nondiscrimination pledge. The decision Monday, which follows a unanimous U.S. Supreme Court ruling in the 2006 case of FAIR v. Rumsfeld, will force the University to decide between allowing military recruiters access to resources in the Law School’s Career Development Office and forfeiting some $300 million in federal funding.
Professor Robert Burt, the law school faculty member named in the suit, said the decision by the Second Circuit Court of Appeals “brings the Law School to its knees.” The faculty had originally won a district court suit in which a judge ruled that the government could not withdraw funding if the Law School refused to aid recruiters because of the military’s “Don’t Ask, Don’t Tell” policy. But the Supreme Court struck down that decision, leading to yesterday’s appeals court ruling, which appears to have all but ended the legal battle.
“I’m disappointed, but not surprised,” Burt said. “Ever since the Supreme Court decided the FAIR case and unanimously rejected most of the First Amendment arguments that we had won in Connecticut district court, it did not seem like a very hopeful prospect.”
The law school has refused to assist recruiters since the district court’s ruling in 2005. Law School officials said they are still planning their next move, but given the enormous amount of University-wide funding at stake, it is unlikely that the school will continue its current policy.
The decision had been expected by most observers, including Nathan Nagy LAW ’09 and Sarah Jeruss LAW ’08, heads of OutLaws, a law school student group for LGBT members of the law school community. In an e-mail statement Tuesday, the two outlined their plans for the future.
“The battle is uphill, but even if we lose a lot of cases, we still have to do what we can to chip away at bad precedent and maintain faith that eventually our rights will be vindicated,” Nagy and Jeruss wrote.
The Fall Interview Program begins next Monday at the Law School, and both Nagy and Jeruss said they are interested in pursuing alternative, activist responses to the Second Circuit’s ruling, should military recruiters arrive with the rest of the potential employers.
This seems to be the end of the legal road for Burt v. Gates, according to many Law School professors.
“There’s no challenge left,” said Burt, “We fought [the government] as far and as powerfully as we could and we lost.”
At this point, only changing the statute behind the Solomon Amendment could afford the University the legal latitude to ban military recruiters, Law School professor Peter Schuck said. But this is a “most unlikely” possibility, he said, given the strong unanimous decision of the U.S. Supreme Court upholding its constitutionality.
Burt v. Gates (originally filed as Burt v. Rumsfeld) was filed in 2003 by 44 Yale Law School professors representing over half of the school’s faculty. The case had its roots in a 1978 decision by the Law School to include the words “sexual orientation” in its anti-discrimination policy. Since that year, Law School officials had repeatedly barred military recruiters from participating in its career fairs and denied them access to Career Development Office resources based on the military’s prohibitive stance toward openly gay individuals in the armed forces, according to a complaint brief filed in 2003 by the Student/Faculty Alliance for Military Equality.
The Law School’s position was challenged early in 2002, when the military warned Yale that continued disobedience of the 1996 Solomon Amendment could result in the forfeiture of nearly $300 million in federal funding for University programs. The Solomon Amendment denies certain federal funding to an academic institution if any part of the institution does not allow recruiters access to its campus and students on the same terms offered to nonmilitary employers.
One year after agreeing to temporarily suspend its nondiscrimination policy in order to preserve the federal funding, the Law School filed suit in 2003, arguing that the Solomon Amendment was unconstitutional.
Litigation took two years, during which time Yale opened its interview programs and Career Development Office to the Department of Defense. According to the 2005 opinion filed by the District Court of Connecticut, a total of six Yale Law School students interviewed with the Department of Defense in the intervening years — none of whom accepted employment with the military. During this time period, the Law School maintained its policy of allowing students to invite military recruiters and officials to campus and providing Department of Defense officials with the contact information of law students upon request.
After its defeat in Connecticut District Court, the government then sent up an appeal to the 2nd Circuit, which the court stayed while the case Forum for Academic and Institutional Rights (FAIR) v. Rumsfeld was debated in the Supreme Court.In FAIR, the Supreme Court denied a consortium of universities and law schools an exemption from the Solomon Amendment by citing the broad constitutional power of Congress to provide for the common defense by raising armed forces.
In its opinion, the Court also rejected FAIR’s freedom of speech arguments, writing, “… as a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”
The firm of Cravath, Swaine, and Moore advocated on the side of the plaintiff, along with David Rosen of New Haven, Conn. Both parties declined to comment, and calls to the Department of Justice were not returned on Tuesday evening.
Law School Dean Harold Koh declined comment.