Yalies sue Defense Dept. over anti-gay discrim

BY CLINTON DICK

One week ago today, Yale Law School professors sued Defense Secretary Donald Rumsfeld over the Solomon Amendment, marking the third suit filed challenging the federal law since the Bush administration threatened to cut off federal funding to schools across the nation if military recruiters are not allowed to interview students on campus.

Yale stood to lose $300 million in funding if it did not comply with the federal law. Yale University is not part of the suit.

This comes just as the Forum for Academic and Institutional Rights (FAIR) awaits a possible preliminary injunction decision in its suit against the government that could come down this week. Also, several Harvard Law School professors wrote a letter in The Record this week calling for President Summers “to initiate or join litigation designed to challenge the Solomon Amendment.”

In an article appearing on Newsday.com, Associated Press writer Noreen Gillespie reports that the 20-page lawsuit was filed in U.S. District Court in New Haven and contends the Solomon Amendment violates First Amendment rights to free speech and free association by forcing Yale to acquiesce to government demands for access to the career development office, despite the government’s refusal to sign Yale’s anti-discrimination pledge. The lawsuit also asks the court to order the government to stop threatening to cut off federal funding, Gillespie continues.

Gillespie quotes Yale Law School Professor Robert Burt, one of 44 faculty members represented in the lawsuit: “What the military is trying to do by demanding that we actively assist them in their recruiting efforts here . . . is draft us in their war against gays and lesbians. We feel strongly we should stand up to that.”

“The Department of Defense isn’t satisfied with having the ability to recruit students who want to work for it,” said David Rosen, a New Haven-based attorney working on the case, as quoted by Gillespie. “What it wants is the Yale Law School to associate itself with military recruitment even though the military discriminates.”

Meanwhile, New Jersey District Court Judge John C. Lifland indicated during oral arguments on October 10 that his ruling on FAIR’s request for a preliminary injunction against the Solomon Amendment could be issued later this week. The order of an injunction could have implications for schools across the country.

In an interview with The Record, Prof. Kent Greenfield, founder of FAIR, said, “The judge has the authority to issue a national injunction, since both FAIR and SALT [Society of American Law Teachers] represent plaintiffs from across the nation. Whether he will do so is yet to be seen.” Asked how HLS could benefit from such an injunction, Greenfield responded, “If the injunction is national, then Harvard could take advantage of it.”

Greenfield saw two ways the judge could rule: “[He] could rule the more aggressive applications of the statute the Defense Department has put in place over the past eighteen months is unconstitutional” or hold that the statute is unconstitutional on its face. “If we win on an ‘applied’ challenge it is a huge victory, but not a complete victory because we think the statute is rotten at its core.”

Greenfield praised the recent lawsuits by UPenn professors and students and Yale professors, though he indicated that if UPenn and Yale had joined FAIR their lawsuits would not have been necessary.

Greenfield also talked about the reluctance of so many educational institutions to legally challenge Solomon. “Almost every dean and university administrator I have talked to about this has expressed real fear of retaliation, whether from DOD [Department of Defense], Congress, or from other funders,” he said. But Greenfield had a hard time saying such fear is justified. “The more members of FAIR there are the less the fear of retaliation would be. The DOD has been able to get away with what it has been getting away with because people have been scared. The more schools that join the less the department will be able to retaliate.”

When asked why schools would not be willing to join FAIR – since only the judge in the case, FAIR’s lawyers and Greenfield know who is a party to the suit – Greenfield said, “Most schools don’t yet trust our promise of confidentiality or that the names will not be discoverable.”

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