U.S. Supreme Court to Hear Case on Solomon Amendment

On December 6, 2005, the U.S. Supreme Court will hear oral arguments in Rumsfeld v. FAIR (Forum for Academic and Institutional Rights), concerning the constitutionality of the Solomon Amendment, which denies federal funds to education institutions that bar military recruiters access to their campuses equal to that given other employers. Here is some background on the case:

In 1978, the Yale Law School faculty collectively adopted a Nondiscrimination Policy, which committed the School to stand against discrimination based upon sexual orientation. That policy grew out of faculty members' deep conviction that neither the Law School's educational mission nor their own individual consciences would tolerate teachers assisting deliberate discrimination against their own students.

For nearly three decades, the faculty applied this Nondiscrimination Policy to give access, but not active assistance, to any employers who insisted upon discriminating against Yale law students in their hiring practices based on sexual orientation. The faculty members believed that Yale Law School should not exclude any speaker from speaking or prevent any point of view from being aired within the School.

Accordingly, the faculty members have never interfered with willing employers and willing job applicants who want to meet on the Law School campus. But Yale Law School does not aid and abet discrimination or assist outside employers who seek to hire some Yale students, but not others, based on their race, gender, religion, or sexual orientation.

In 2002, the Department of Defense (DOD) invoked the Solomon Amendment and threatened to cut off more than $300 million in Yale's federal funding if the faculty members did not change their longstanding policy. Rather than abandon their Nondiscrimination Policy, 45 Yale Law School faculty members filed the case of Robert A. Burt et al. v. Donald H. Rumsfeld in the United States District Court for the District of Connecticut, challenging the legality of the Defense Department's interpretation of the Solomon Amendment.

Following extensive fact-finding, the Hon. Janet C. Hall:
(1) entered final judgment on behalf of the Yale Law School faculty plaintiffs;
(2) declared the DOD's threats to deprive Yale University of some $300,000,000 in federal funding an unconstitutional application of the Solomon Amendment in violation of the faculty members' rights under the First Amendment to the United States Constitution; and
(3) permanently enjoined the DOD from making any further financial threats against Yale University.

Judge Hall's opinion in support of the permanent injunction confirmed that the DOD had:
(1) unlawfully invaded the faculty members' constitutionally protected right of freedom of association;
(2) unconstitutionally suppressed the faculty members' right to disassociate themselves from the DOD's discriminatory recruitment practices; and
(3) most significantly, had failed to introduce any evidence of harm to U.S. military recruiting efforts resulting from the faculty members' Nondiscrimination Policy.

Judge Hall also stated that DOD has, at all times, had ample access to Yale Law School students for its legitimate recruitment purposes. In Burt, the only Solomon Amendment case to date to reach final judgment, the trial court found that Petitioners had introduced no evidence to show that the School's Nondiscrimination Policy -- of giving access but not assistance -- had in fact adversely affected the DOD's efforts to recruit at Yale Law School.

In Rumsfeld v. Forum for Academic and Institutional Rights ("FAIR"), a case arising out of a similar appeal from the U.S. Court of Appeals for the Third Circuit, the U.S. Government now denies that it has invaded academic freedom or coerced faculty, and claims that the faculty members' efforts to protect their own gay, lesbian, and bisexual students against discrimination have undermined military recruitment efforts in a time of national emergency. In Yale Law School's case, a federal district judge has explicitly rejected that conclusion.

In September 2005, several amicus curiae ("friend of the Court") Supreme Court briefs were filed in Rumsfeld v. FAIR. One, signed by 44 professors at Yale Law School, argued that the Solomon Amendment regarding military recruitment on university campuses threatens academic freedom and unconstitutionally seeks to prevent law professors from disassociating themselves from the military's campaign of open discrimination against gays, lesbians and bisexuals. The brief states:

"[T]he DOD's actions have trampled upon the faculty members' academic freedom. The DOD's effort to conscript the Yale Law School faculty in its policy of open and deliberate discrimination offends the fundamental values of Yale Law School, and any law school. Members object not to the mere presence of military recruiters, but to being forced to assist the military in telling some Yale Law students that they are not fit to serve in our country's armed forces because of their sexual orientation. The faculty members deeply respect those who serve in our nation's armed forces. They find both demeaning and stigmatizing Petitioners' insistence upon excluding Yale's gay, lesbian, and bisexual students from those forces."

"By threatening Yale and other law schools with massive defunding, Petitioners seek to prevent any law professors from disassociating themselves from the military's campaign of open discrimination against gays, lesbians and bisexuals. But in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) and its progeny, this Court has repeatedly affirmed that private associations have a First Amendment right to disassociate themselves from, and thereby to protest against, the conduct of other private or public organizations. The Government should not now be allowed to use its money to coerce Yale Law Faculty Members into associating with its discriminatory hiring practices against some Yale law students. . . ."

"Neither the Solomon Amendment, nor the Constitution, authorizes our military to recruit lawyers by invading the academic freedom of teachers or forcing them to associate with practices that are inconsistent with their core values, particularly when such coercion serves no legitimate military need."

"The Yale Law School is an equal opportunity employer and fully supports any employer who offers equal opportunity," said Dean Harold Hongju Koh, who signed the YLS faculty brief in his individual capacity. "But when our Government tries to force law teachers who believe in equal opportunity to endorse discrimination against their own students, those teachers have a right and a duty to resist."

Other amicus curiae briefs filed before the Court (which may be found on this webpage) include:

-A brief by Yale University in coordination with six other universities

-A brief filed by SAME (Student/Faculty Alliance for Military Equality) and OutLaws, both official law Yale Law School organizations. SAME comprises of YLS students of all races, religions, genders and sexual orientations, and OutLaws is a YLS organization for lesbian, gay, bisexual and transgender students.