The recent court victory by Yale Law School in challenging the Solomon Amendment marks significant progress for opponents of military recruiting policies. Along with the similar Third Circuit Decision, the Yale victory creates momentum for those seeking to challenge implementation of the Solomon Amendment and will hopefully inspire similar challenges around the country.
One notable school that has not initiated a court challenge is Harvard. While HLS was the first law school to ban military recruiters after the Third Circuit decision, it has, as of this moment, no legal protection for such a move. It is odd that HLS will take a stand without firm legal footing but somehow stays away from directly engaging in litigation itself. Certainly, the school has made it known that it does not believe in following the Solomon Amendment-why then, does the school not take the next logical step and challenge its implementation in court? Securing a victory in the First Circuit would create legal cover for other schools in the area to take similar steps. Even a loss would help clarify matters, creating a split in the Circuits and leading to the Supreme Court resolving the matter once and for all. As it is, the school is engaging in the odd tactic of remaining legally vulnerable while refraining from a direct attempt to resolve that vulnerability.
The faculty and students of Yale Law School are to be commended for fighting for their beliefs. Not so commendable, however, was the decision by the school administration to suddenly prevent previously scheduled military recruiters from coming on campus. While Yale could not control the timing of the court decision, it could certainly control its response. The military recruiters who were scheduled to arrive at Yale a mere two days after the decision are not responsible for the “Don’t Ask, Don’t Tell” policy. Nor are the students who sought to interview with these recruiters. Discrimination must be fought where it exists, but there is no evidence to suggest that these specific individuals held such malice in their hearts. Fighting the larger battle of stopping the Solomon Amendment is necessary-but having the flexibility to allow previously scheduled interviews to occur would not have harmed this larger goal. The school could simply have announced that the scheduled interviews would continue as planned but future on campus recruiting would be banned.
It is important as this debate progresses to remember that the men and women of the armed forces do not have a say in devising the “Don’t Ask, Don’t Tell” policy. The rightful targets of ire over this discriminatory policy are Congress and the President. Yale and Harvard are right in making their disdain for such a policy known-but they should also make it clear that they know who is at fault for such allowing such a terrible policy to continue.