Balkinization  

Wednesday, February 02, 2005

You can fight the defense department

Ian Ayres

Two days ago, a group of faculty at Yale Law School (including Jack Balkin and me) won a case against Donald Rumsfeld and the Defense Department. U.S. District Court Judge Janet C. Hall held:
[T]he Solomon Amendment is hereby declared unconstitutional as applied, and the
defendant [Defense Department] is enjoined from enforcing it against Yale
University based upon Yale Law School’s Non-Discrimination Policy.
Since 1978, Yale Law School has had a non-discrimination policy which included an opposition to discrimination on the grounds of sexual orientation. Employers who refused to certify their compliance with this policy were barred from school sponsored recruiting services provided by the school’s Career Development Office. Until 2002, the policy effectively barred the military from participating in certain CDO events – because the military was unable to certify that they do not discriminate against openly gay soldiers.

All of this changed in 2002. On May 29, 2002, Colonel in the Army, Clyde J. Tate III, wrote Yale President Richard Levin warning: “
Unless we receive new information from you by July 1, 2002, showing that
policies and practices of yourinstitution have been modified to conform with
federal requirements . . . we will consider forwarding this matter to the Office
of the Secretary of Defense with a recommendation of funding denial.”
The government’s strong arm tactics would have had a devastating impact on Yale and the law school voted to temporarily suspend its policy.

44 members of the faculty then filed suit challenging the Amendment.

The court held that the Solomon Amendment was an unconstitutional condition that violated the faculty’s first amendment rights. The Solomon Amendment “substantially interferes with the Faculty Members’ ability to advocate their viewpoint” Among other things, the law is unconstitutional because “[it]unjustifiably burdens the Faculty Members’ First Amendment right of expressive association.” You can read the opinion here and here.

This victory is not a proud day for Yale President, Rick Levin. I am a great supporter of Levin’s presidency. But Levin’s refused to have Yale directly challenge this Amendment. This was wrong for three reasons. First, it signals that Levin doesn’t care sufficiently about sexual orientation discrimination (if the military were again discriminating on the basis of race, I bet he would have acted differently). Two, it signals that he doesn’t care sufficiently about academic freedom. The Solomon Amendment is a coercive intrusion into a core pedagogical expression of the faculty. If the government can force us to provide access to discriminatory speech, then it might force us to provide access for other views as well (anti-evolution textbooks come to mind). Third, it signals that he doesn’t sufficiently care about the law school faculty – which unanimously voted opposition to the amendment and urged the University to file suit.

But this wonderful victory suggests to me to new ideas:

1) YLS might want to consider applying the non-discrimination policy to judges. The opinion got me thinking about this when it said in a footnote “approximately 50% of Yale law school students obtain employment as judicial law clerks, a recruiting process that does not use the CDO program or any form of on-campus recruiting.” So it turns out that a much more important government employer of YLS graduates (i.e. judges) are never asked to sign the non-discrimination pledge. Should the law school faculty refuse to help the faculty send recommendations to employers who refuse to take the pledge? [This is not just a matter of symbolism. I sadly remember receiving a call from a judge who was concerned that a male clerkship applicant was wearing an ear-ring. I’m almost certain that the concern was that the man might be gay.]
2) Does California interfere with the expressive association of young heterosexual couples? Imagine a law suit by a young heterosexual couples challenging the law which allows same sex couples to register for domestic partnership (and old different sex couples) but prohibits young different sex couples from registering. This law, which discriminates against heterosexuals, forces heterosexuals who want domestic partnership rights to associate with the discriminatory M word. This possibly violates both equal protection and first amendment.

Comments:

The best that can be said about this "win" is that a college now can advance academic freedom by making academia less diverse. The amendment's ultimate purpose was held to unduly force (the dissent's arguments on why it did not are pretty convincing) a college to allow military recruiters on campus. You know, to promote the military.

Yay! Now certain colleges can in some small way keep out a point of view. A very proud day in academia. And, take money from the gov't while refusing to let its agents speak their mind. Seems fair.
 

An additional word on the criticism referenced by the alumni's comments. First, a strong rejection of the gov't policies per se is desirable, but not joining in the lawsuit is not a clear sign that the president supports them or anything. The third objection is of some merit, but depends on the reason supplied for not joining.

The second is rhetorical overkill. The example given is a clear governmental interference (not religious neutral at that) with curriculum matters. I wonder though if it would be a great idea to bar intelligent design lecturers (or books from the library) from the campus totally. No matter, the situation here is not really comparable to that example.
 

As some friends have noted here, YLS is only hurting herself by permitting the faculty to strangle the legitimate career interests of her students. Extending this "ban" to judges, as your post suggests, will take this debacle to new lows.

Can you imagine prospective students considering their application to YLS, only to learn that the faculty may not recommend them to certain "undesirable" judges? The nation's best and brightest might think twice before they let Yale defeat their chosen career before they even arrive.

It may not take that long. According to the news article posted here, the damage to YLS students by her faculty has already begun. Well done, gentlemen. I hope you are proud.
 

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