Yale Students File Lawsuit

Two Yale Law School (YLS) student groups filed suit against the Department of Defense in U.S. District Court in New Haven yesterday to bar military recruiters from the school’s official job fairs.

The Pentagon’s insistence that it be included in a YLS-sanctioned recruiting event at New Haven’s Holiday Inn violates students’ First and Fifth Amendment rights, according to the complaint, which was filed jointly by the Student/Faculty Alliance for Military Equality (SAME) and YLS OutLaws, two campus civil rights groups.

The suit is the latest in a series of legal challenges to the 1995 Solomon Amendment, which allows the Pentagon to block federal funding for universities that limit military recruiters’ access to students.

If successful, the suit may provide a legal road map for students at Harvard Law School (HLS), who were counseled against filing their own suit by HLS professors who felt they did not have a strong enough case.

Opponents of the amendment at Yale claim that the law conflicts with the schools’ nondiscrimination policies, which require that recruiters treat applicants and employees equally with regard to sexual orientation. The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay individuals.

A majority of the YLS faculty filed a similar suit on Oct. 17, and a group of University of Pennsylvania law professors and students filed a complaint in U.S. District Court in Philadelphia earlier this month.

Those two suits came just weeks after a broad coalition of law schools and professors, calling itself the Forum for Academic and Institutional Rights (FAIR), filed a challenge to the Solomon Amendment in a U.S. District Court in Newark.

H. Kent Greenfield, a Boston College law professor who is president of FAIR, praised YLS students for taking action but warned that the recent lawsuits could limit the success of FAIR’s legal effort.

Judge John C. Lifland, who is presiding over the FAIR litigation, has the authority to issue a nationwide injunction suspending the Solomon Amendment. But the YLS and Penn lawsuits will give judges in New Haven and Philadelphia the opportunity to issue rulings in conflict with a potential Lifland injunction.

Lifland was expected to issue his decision on FAIR’s motion for an injunction last Friday, but Pentagon lawyers filed a last-minute motion to delay the ruling, Greenfield said.

“I have been expecting a ruling all week,” said Greenfield. The delay is “consistent with our understanding that this judge is very thoughtful and thorough.”

Adam A. Sofen ’01, a second-year YLS students who is co-chair of OutLaws, defended his group’s decision to file suit separately from YLS faculty members and FAIR.

“Both students and faculty decided that it’s better to let a thousand flowers bloom: it could only be to the good to have more opportunities to challenge the Solomon Amendment in court,” said Sofen, a former Crimson editor.

While the District Court in New Haven is itself “a propitious place to file suit,” according to Sofen, “the legal case is so strong that it doesn’t matter” under which jurisdiction Solomon Amendment opponents litigate.

But HLS professors have advised Lambda, a law students’ civil rights group, that students have flimsy legal grounds for filing suit, according to second-year HLS student Amy R. Lawler, the group’s political co-chair.

“All the recommendations from law professors have been that we don’t have legal standing,” Lawler said.

“We have basically written off [the option of filing suit] because we have had such a consensus from law professors,” he added.

But a lead lawyer in the YLS students’ suit said he disagreed with the HLS professors’ findings.

“The touchstone of standing is injury, and here—as the complaint lays out—the students are injured by the government’s policy,” said Carmine D. Boccuzzi, an attorney with the New York firm of Cleary, Gottlieb, Steen, Hamilton.

Lawler said she was hopeful that YLS students and their lawyers had found a new avenue for litigation.

Sofen said the YLS students “have two main categories for complaint.”

First, the students charge that YLS’s long-standing nondiscrimination policy, which requires recruiters who attend the Holiday Inn event to pledge equal treatment on the basis of sexual orientation, does not in fact violate the 1995 statute, since YLS offers opportunities and space for recruiters to meet with students at other times of the year.

“Yale always permitted the military to request meeting space on campus and to contact students directly,” Sofen said.

Second, the YLS students contend that the Solomon Amendment is itself unconstitutional.

According to the complaint, the amendment violates the students’ “First Amendment right not to endorse or associate with employers who reject the Law School’s non-discrimination policy and message.”

Moreover, the students argue, by forcing the law school to suspend its non-discrimination policy solely for lesbian and gay students, “the Solomon Amendment...violates plaintiffs’ right to due process and equal protection under the Fifth Amendment.”

The complaint also contends that the statute constitutes “viewpoint discrimination” because it allows law schools to bar military recruiters on religious or pacifist grounds, but not on principles of nondiscrimination.

The YLS faculty has also built its case on First and Fifth Amendment grounds. Professors and students have cooperated throughout the legal process, Sofen said.

The anti-Solomon Amendment effort “is a movement that is gaining force fast,” said Sofen. “I wouldn’t be surprised if we see more lawsuits like this in the next few months, including from Harvard students.”

Ivy League university administrations–with hundreds of millions of federal funds at stake—have been reluctant to come out publicly in opposition to the Solomon Amendment.

FAIR preserves the anonymity of its members, although New York University Law School has identified itself as participant in the coalition.

Administrators at Harvard, Yale and Penn have said that their universities are not officially involved with FAIR.

“I continue to think it interesting that the elite schools are tripping over themselves to say that they are not members of FAIR,” Greenfield said.

More than half of the HLS faculty signed an open letter to University President Lawrence H. Summers last Wednesday calling on him to initiate or join litigation against the Pentagon’s policy.

Harvard exempted the military’s Judge Advocate General recruiters from the HLS’ nondiscrimination policy after the Pentagon threatened to block the University’s federal funding, which amounted to $412 million in Fiscal Year 2003.