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Wednesday, February 2, 2005

A Message from Dean Harold Hongju Koh Regarding Military Recruitment

As you know, the Defense Department has lately interpreted the Solomon Amendment to require denial of federal funds to institutions of higher education that withhold assistance from military recruiters who will not pledge to refrain from discrimination in recruiting. Last year, groups of Yale Law School faculty and students filed suit in the federal district court in Bridgeport challenging the legality of the Defense Department's interpretation of the Solomon Amendment. On December 9, 2004, Judge Janet C. Hall (D.Conn.) heard argument on motions for summary judgment in these cases. A few weeks earlier, in the FAIR litigation, the Third Circuit directed entry of a preliminary injunction against enforcement of the Solomon Amendment, stating that "[t]he Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom. ... In this context, the Solomon Amendment cannot condition federal funding on law schools' compliance with it."

Yesterday, Judge Hall granted summary judgment in favor of the faculty plaintiffs. Judge Hall's opinion confirmed that the Solomon Amendment has been unconstitutionally applied to Yale Law School and permanently enjoined the Defense Department "from enforcing it against Yale University based upon Yale Law School's Non-Discrimination Policy." Judge Hall's opinion declared: "The Solomon Amendment violates the [faculty] plaintiffs' First Amendment right to freedom of speech.. . . " Yale Law School, "acting through the Faculty, has been unconstitutionally coerced into foregoing its own message [of nondiscrimination] and into assisting DoD in the dissemination of DoD's message of its "Don't Ask, Don't Tell policy...." "In addition, DoD offers no evidence to support a finding that the Solomon Amendment, and the suspension of the N[on-]D[iscrimination] P[olicy] for the past two years at YLS that it caused, has advanced its goal of raising an army through effective recruiting." ... "[T]he Solomon Amendment is not narrowly tailored to advance a compelling government interest, and thus unjustifiably burdens the Faculty Members' First Amendment right of expressive association."

I am gratified by Judge Hall's judgment, which seems to me clearly correct. I believe that her ruling brings us closer to the day when all members of our community have an equal opportunity to serve in our Nation's armed forces. This Thursday, February 3, 2005, the Spring 2005 Interviewing Program will begin. In light of the District Court's opinion and injunction which parallel the Third Circuit's ruling, I am notifying military recruiters that the Yale Law School will enforce its nondiscrimination policy during the Spring 2005 Interviewing Program without exception.

Harold Hongju Koh
Dean, Yale Law School