Balkinization: You can fight the defense department

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]

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.

# posted by

Joe : 7:09 PM

No problem, Joe. The military gets first crack at the students now while they are in high school, thanks to "No Child Left Behind." Unless, of course, the child's parent(s) write and file an objection.

# posted by

Ereshkigal : 7:43 PM

Congratulations on your victory. As a Yale alumni, I must respond to the latter comments.

I don't see what merit, beyond a little bit of extra symbolism, would have come from the university joining the lawsuit. The Law School was apparently amply able to show standing and for some odd reason I believe they were able to find adequate counsel. Bringing the whole university in would have introduced an unnecessary political liability both to Yale and to the case when it attracted additional attention. I don't like the current political situation any more than you do, but ignoring it for mere personal symbolism--since the symbolism would have meant very little to anyone else except opponents--is not the right course.

# posted by

maxkennerly : 8:42 PM

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.

# posted by

Joe : 8:54 PM

Please do keep judges from recruiting on Yale's campus. Maybe this will provide the long overdue opportunity for judges to learn that they can get clerks who are more than capable from schools other than the top 5. Your arrogance at suggesting that Yale dictate federal judicial policy (and maybe they can) is simply amazing!

# posted by

Rich : 8:53 AM

I understand that when people litigate cases they tend to put blinders on and convince themselves over the course of several months that the other side's arguments are completely meritless, but I would have expected better from a law professor.

Treating this as a purely academic debate to see if the rules permit you to force political correctness on the military is the type of attitude that causes many in the real world to view academics as arrogant, useless wastes of flesh. It's much easier to contort the Constitution to fit your purposes than to debate the real consequences of the military's policy.

If YLS had a principled disagreement with the Solomon Amendments, they would refuse federal funding outright and explain why the policy is unsound.

Perhaps the judges will exercise their free speech rights too. Others would do well to follow Acker's lead.

Birmingham News

Judge won't use clerks from Yale
Wednesday, February 09, 2005
VAL WALTON
News staff writer

An Alabama federal judge has told Yale Law School he won't accept its graduates for clerkships because the school blocks military recruiters from campus.

Acker wrote that he was exercising the same freedom of speech that U.S. District Judge Janet C. Hall supported when she ruled Jan. 31. She backed the faculty's claim that their rights to free speech were violated by enforcement of the Solomon amendment, which requires schools to provide access to military recruiters or lose federal funding, including student loans.

In response, Acker said Yale Law School students need not apply.

"Some of my very best law clerks have been from the law school from which I proudly graduated," Acker said. "I therefore recognize that this publicly announced decision will hurt me more than the allowing of military recruiters would hurt YLS."

Efforts to reach Koh were unsuccessful Tuesday.

# posted by

Farnsworth : 9:43 AM

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.

# posted by

The Professor : 9:24 PM

As a Yale graduate and long-serving officer in the 1st Battalion, 75th Ranger regiment, allow me to express my great relief that the military will not look forward to the burden of spending vast amounts to recruit the merest handful of whiny, self-important Yale law graduates into the JAG corps. The military has been, and will continue to be much better off with only the most tenuous connection to the Ivy League, a bastion of that which makes America so much less than it could be. Read much Tacitus? We are, after all, among the very last institutions in this Republic that maintain the standards of civic and personal virtue that allowed for such cesspools of self-indulgence. As long as we can confine the cesspools to the blue states, we'll keep the Republic honest.

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