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2nd Circuit: Military-recruiting law doesn't violate academic freedom

By The Associated Press,
First Amendment Center Online staff

NEW HAVEN, Conn. — Yale Law School will end its policy of not working with military recruiters after a court ruling this week jeopardized about $300 million in federal funding, officials said yesterday.

Yale and other universities have objected to the Pentagon’s “don’t ask, don’t tell” policy, which allows gay men and women to serve in the military only if they keep their sexual orientation to themselves.

The 2nd U.S. Circuit Court of Appeals ruled against Yale on Sept. 17, rejecting its argument that its right to academic freedom was infringed by a federal law that says universities must give the military the same access as other job recruiters or forfeit federal money.

“The fact is we have been forced under enormous pressure to acquiescence in a policy that we believe is deeply offensive and harmful to our students,” said Robert Burt, a Yale law professor who was lead plaintiff in the case, Burt v. Gates.

The funding loss would have devastated the university’s medical research into cancer, heart disease and other illnesses, Burt said.

Yale Law School policy requires all recruiters to sign a nondiscrimination pledge, which the Pentagon has not done.

Jan Conroy, a Yale Law spokeswoman, said faculty had authorized the dean to waive the nondiscrimination pledge in 2002 when the military challenged it.

The pledge requirement will now be waived if military recruiters ask to participate in job fairs, Conroy said.

She said the U.S. Air Force has already asked to participate in a job interview program that starts Sept. 24.

The law school had refused to assist military recruiters, denying them access to Web-based programs that link students and employers, Burt said.

The appeals court decision came after the Supreme Court ruled unanimously last year in Rumsfeld v. Forum for Academic & Institutional Rights that the government can force colleges to open their campuses to military recruiters despite university objections. Justices rejected a free-speech challenge from law schools and professors who claimed they should not have to associate with military recruiters or promote their campus appearances.

The decision upheld a federal law, known as the Solomon Amendment, that says universities must give the military the same access as other job recruiters or forfeit federal money.

In Connecticut, a federal judge ruled in 2005 that Yale Law School had a right to bar military recruiters from its job-interview program. After the Supreme Court decision, the government appealed that ruling. That appeal led to this week’s 2nd Circuit ruling.

The plaintiffs had argued that the federal judge’s ruling should be upheld because the Supreme Court did not address whether the Solomon Amendment violates academic freedom.

The 2nd Circuit, however, dismissed that argument.

“We conclude that the Supreme Court almost certainly rejected an academic-freedom argument made both by the plaintiffs in [Rumsfeld v. FAIR] and the current plaintiffs … , but that, in any event, plaintiffs’ academic-freedom argument lacks merit.”

Yale Law School Dean Harold Koh said in a statement yesterday that he was disappointed by the appeals court decision. Yale has an obligation to “ameliorate the impact” of discriminatory hiring practices, he said.

“We intend to meet this obligation and will work alongside our students to identify the best ways of doing so, in accordance with the law,” Koh said. “We continue to look forward to the day when all members of our community will have an equal opportunity to serve in our nation’s armed forces.”

The military’s policy had put college leaders in a thorny situation because campus rules forbid participation of recruiters representing agencies or private companies that have discriminatory policies.

Defense officials argued that the Solomon Amendment requires Yale to allow recruiters on campus even without signing the pledge. Government lawyers have said blocking military recruiters makes it harder to hire huge teams of lawyers for issues related to operations in Afghanistan and Iraq.

Yale gets OK to ban military recruiters
Federal judge agrees with law school faculty that government's application of Solomon Amendment violates their free-speech, association rights. 02.02.05


Justices uphold campus military-recruiting law

Court rules 8-0 that colleges accepting federal money must allow such visits despite schools' objections to Pentagon's policy on gays. 03.06.06

Roberts' remarkable feat in military-recruiters case

By Tony Mauro Chief justice manages unanimous ruling through narrow writing, assertions that First Amendment didn't apply in some areas. 03.07.06

Rumsfeld v. FAIR: What does it mean?
Online exchange by law professor Dale Carpenter, First Amendment lawyer Robert Corn-Revere about military-recruiters case. 03.09.06

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