Gagged and silent, about 40 students stood on the steps of Yale Law School on Wednesday to protest the U.S. military’s ban on openly gay soldiers.

From there they walked somberly to the Courtyard Marriott, where Navy and Air Force recruiters had appointments to interview five students inside.

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For the second straight year, Yale Law School’s career services was required — by court order — to provide assistance to those military recruiters, even though the “don’t ask, don’t tell” policy for gay soldiers grates against the Law School’s own nondiscrimination policy.

So for the second straight year, students protested the military recruiters’ presence at the Law School’s career fair.

Since 2002, the U.S. Department of Defense has said universities must assist military recruiters or else lose federal funding. For Yale, that funding amounts to some $300 million, according to Law School Dean Harold Hongju Koh.

But since 1978, the Law School has required employment representatives to sign a non-discrimination statement, which covers sexual orientation.

The military enacted the “don’t ask, don’t tell” policy in the 1990s because it determined that allowing gays to serve openly would “create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion.”

Because the recruiters would not sign the non-discrimination agreement, the Law School sought to withhold the assistance of its career services. Forty-six members of the Law School faculty filed a lawsuit in 2003 challenging, on the basis of free speech, the Defense Department’s threat to withhold funding for not cooperating with recruiters.

While that case was pending, the U.S. Supreme Court upheld the constitutionality of the Pentagon’s policy in a different case last year.

But, the Court said, addressing the free speech claims, students are more than welcome to protest the policy. So that’s what they’ve done.

Since the ruling, in order to comply, Koh has had to waive the non-discrimination requirement for the military recruiters. But the faculty won’t amend the policy itself, he said, while it waits for the law to change.

“We’re on the right side of history,” he said in an interview last week. “It’s a civil rights issue — suppose that 20 years ago an employer who wanted to come interview required that the Law School help it to hire only Christian white males. We would have asked, ‘Why don’t you give all of our students an equal opportunity to apply for your jobs?’ ”

This year’s protest is significant because it is an election year, said organizer Craig Konnoth LAW ’10, and the Democratic nominee for president, Sen. Barack Obama, has said he supports repealing “don’t ask, don’t tell.”

“If any other employer discriminated, we just wouldn’t have them on campus,” Konnoth said. “But [the military] is the only employer we’re compelled to have.”

As the protestors gathered outside the Law School’s Wall Street entrance, Koh wished them off by quoting from the Supreme Court’s decision: “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing … restricts what the law schools may say about the military’s policies.”

The demonstrators, whose numbers roughly matched last years, then proceeded through Cross Campus and along Elm Street with police escort.

The recruiters could not be reached for comment since the career fair was closed to press.