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.

Posted 11:39 AM by Ian Ayres [link]