COUNTERING MILITARY RECRUITMENT
Articles: Military Recruiting: General
Denial of Funds to Yale Law School Upheld Over Military Recruiter Ban
Beth Bar, New York Law Journal
September 18, 2007
Yale Law School can be denied certain federal funding for barring
military recruiters from its campus, a Manhattan federal appellate
court has held.
Citing a 2006 U.S. Supreme Court decision finding that the
government's policy of withholding money to schools that bar military
recruiters does not violate the First Amendment, the 2nd U.S. Circuit
Court of Appeals Monday reversed a Connecticut federal court judge's
contrary opinion.
"Plaintiffs ... have no First Amendment claim that is not either
lacking in merit or that has not already been rejected by the Supreme
Court," 2nd Circuit Judge Rosemary S. Pooler said in a decision
joined by 2nd Circuit Judge Reena Raggi in Burt v. Gates, 05-1732-cv.
Southern District of New York Judge Colleen McMahon, an original
member of the panel, recused herself following oral argument.
At issue in the case is the Solomon Amendment, 10 U.S.C. § 983(b),
which denies certain federal funding to an academic institution if
even one portion of the institution does not allow military
recruiters access to its campus.
Pooler explained that because the military is required to bar openly
homosexual individuals, the Solomon Amendment conflicted with the
anti-discrimination policies of many academic institutions, including Yale's.
"Yale Law School requires any employer seeking the assistance of its
career development office to sign a pledge not to discriminate on
several bases, which include sexual orientation, " the judge said.
"The military has not been willing to sign this pledge. Therefore,
for many years, the law school prohibited the military from
participating in its two yearly programs."
The school backed away from this position in 2002, when its president
was told that it would lose significant funding. But a year later,
Yale Law professors filed a suit against then Secretary of Defense
Donald M. Rumsfeld, arguing that the amendment was unconstitutional.
Connecticut District Court Judge Janet C. Hall ruled in favor of the
law school professors in 2005. She held that the Solomon Amendment
unconstitutionally conditions federal funding on the surrender of the
school's rights of freedom of speech and association.
While the government's appeal was pending at the 2nd Circuit, the
U.S. Supreme Court granted certiorari in Forum for Academic and
Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), 544
U.S. 1017 (2005). The circuit stayed the appeal in Burt pending the
Supreme Court's ruling.
On March 6, 2006, the Supreme Court issued a unanimous decision in
which it upheld the constitutionality of the Solomon Amendment. One
month later, the government moved for summary reversal of Hall's
decision, and the Yale professors cross-moved for remand to the district court.
The 2nd Circuit denied both motions. On appeal, the government argued
that the Supreme Court's decision required reversal of Burt and
vacatur of its injunction against enforcing the Solomon Amendment.
The Yale professors had argued that Hall's decision should survive
because the Supreme Court did not consider in Forum for Academic and
Institutional Rights whether the statute violated the First
Amendment's right to academic freedom.
But the 2nd Circuit disagreed. Pooler said the Supreme Court "almost
certainly" rejected an academic-freedom argument, and said that the
professors identified no authority to suggest that the Court would
extend its protection of academic freedom to denying equal access to
military recruiters.
"Such authority as exists convinces us that the Court would not
extend its academic-freedom jurisprudence to the Solomon Amendment,"
the judge said.
E. Joshua Rosenkranz, a partner at Heller Ehrman who was lead counsel
to the Forum for Academic and Institutional Rights before the Supreme
Court case, and Sylvia A. Law, founder of the Forum and a professor
at New York University School of Law, both said they were not
surprised by the 2nd Circuit's decision.
"The plaintiffs in the Burt case saw a potential to persuade the 2nd
Circuit to reach the opposite conclusion (as the Supreme Court), but
the 2nd Circuit said no," Rosenkranz said in a telephone interview.
Paul M. Dodyk, Daniel Slifkin, Stephen E. Frank and Gabriel F.
Soledad of Cravath Swaine & Moore and David N. Rosen of David Rosen &
Associates in New Haven, Conn., represented the Yale professors in
Burt. Calls to Dodyk, Slifkin and Rosen were not returned.
Scott R. McIntosh, Peter D. Keisler, Kevin J. O'Connor and Douglas N.
Letter represented the government. A call to the Department of
Justice's Office of Public Affairs was also not returned.
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