A Note from Dean Heather Gerken: Yale Law School’s Commitment to Nondiscrimination

By Heather K. Gerken
Dean and Sol & Lillian Goldman Professor of Law

Heather Gerken

During the same week that the Attorney General of the United States affirmed that the Department of Justice would not discriminate on the basis of sexual orientation or gender identity, Senator Ted Cruz opened an investigation into the Law School for extending the same protections to its own students.

Last month, we made an announcement clarifying our longstanding nondiscrimination policy: we would not financially support employment positions unless they were open to all of our students, including members of the LGBT community. Much to our surprise, this prompted Senator Cruz to open an investigation of the policy on the charge that it constitutes religious discrimination. It appears that he understands our protection of LGBT students to be a form of religious discrimination. In fact, the policy explicitly prohibits religious discrimination.

As Dean, I take the charge seriously because I take the responsibility to protect against religious discrimination seriously. Religious liberty is one of our nation’s core constitutional commitments. I am extremely proud that people of many faiths make up our community, and we have supported the recruitment efforts of faith-based groups, including Catholic, Jewish, Muslim, and conservative Christian organizations. We have also helped students work for organizations of every political stripe.

Unlike many schools, Yale pays the salaries of students working for public-interest organizations over the summer and after graduation, and it forgives their loans if their salaries fall below a certain threshold. The policy we announced last month is simple: going forward, we will not fund the work of an employer that refuses to hire students because they are, for instance, Christian, black, a veteran, or gay.

Without that policy, we would be forced to subsidize employers that discriminate against our own students. That we will not do.       

Contrary to press reports, our policy does not single out any student based on religion. Nor does it single out any organization based on ideology, litigation strategy, or political goals. Instead, it is designed to protect all students — including the many Christians and other people of faith among our students and alumni.

Our policy is rooted in both basic American values and the values of the legal profession. The American Bar Association calls upon law schools to protect their students from discrimination, including discrimination based on sexual orientation. Indeed, a law school cannot be accredited by the ABA without taking steps to prevent discrimination based on sexual orientation. As a result, law schools across the country forbid employers from on-campus recruiting if they do not comply with nondiscrimination policies that mirror Yale’s.

Far from being a violation of federal law, our policy is patterned on federal law. By executive order, the federal government prohibits discrimination by federal agencies on the basis of protected categories, including sexual orientation and gender identity. In fact, Attorney General William Barr affirmed that the Department of Justice adheres to these principles in the same week that Senator Cruz gave notice of the investigation. Similarly, an executive order prohibits federal contractors from discriminating on these same grounds. The government thus asks of the contractors it funds the same commitment we ask of the employers we subsidize.

As has long been the case with federal policy, our policy also will afford accommodations for religious organizations in hiring. Affording such accommodations is consistent with both anti-discrimination principles and our long and proud tradition of graduates pursuing careers with religiously affiliated organizations. Senator Cruz could very well have been unaware of this fact at the time he made his announcement, but we shared this fact with anyone who did ask — well in advance of Senator Cruz’s letter or any public inquiries.

As a lawyer and constitutional scholar, I have devoted much of my career to promoting equality for our students and our society. Our antidiscrimination policy is a basic civil-rights protection. It is also vital to promoting diversity of thought, speech, and ideology within the university.

Finally, Senator Cruz appears to infer that the Law School Administration engaged in religious discrimination because this policy was raised by our students in the wake of a controversial debate. Nothing could be further from the truth. Needless to say, deans receive requests from all sides, especially during these fraught and polarized times. In deciding whether and when to act, we always look to our core values as our touchstone. In fact, our first response to this controversy was a statement that did not attract the attention of Senator Cruz, in which my entire Administration sent a message to the community affirming the importance of speech and debate on campus and reminding students that they owed one another a presumption of good faith. That decision was entirely in keeping with our core commitments. So is this one.

Nor was this decision undertaken in haste. I referred this question to the relevant faculty committee, which thought it a straightforward question and provided a unanimous response.  Going forward, we will also implement the policy in our usual fashion. I have appointed an intellectually and ideologically diverse faculty committee to deliberate and craft an appropriate strategy. Anyone with knowledge of these issues knows that these questions must be addressed with care, and we will not be rushed into a decision.

We cherish our students no matter whom they love, where they worship, or how they vote. That is exactly why we have a nondiscrimination policy in the first place. We are committed to the values embedded in both the Constitution and the profession that honors it, and we are confident that our policy adheres to those values while respecting — and protecting — religious liberty.