Yale Professors' Brief on Solomon Amendment

A Supreme Court brief, signed by 44 professors at Yale Law School, was filed on Wednesday arguing that the Solomon Amendment regarding military recruitment on university campuses threatens academic freedom and seeks to prevent law professors from disassociating themselves from the military's campaign of open discrimination against gays, lesbians and bisexuals.

The amicus, or friend-of-the-court, brief in the case of Rumsfeld v. FAIR (Forum for Academic and Institutional Rights), which is scheduled to be argued before the Supreme Court on December 6, 2005, also argues that facts in the case prove that the Department of Defense has, at all times, had ample access to Yale Law School's students for legitimate recruitment purposes. The Law School does not bar anyone from recruiting on campus, but it 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 or sexual orientation.

"The Yale Law School is an equal opportunity employer and fully supports any employer who offers equal opportunity," said Dean Harold Hongju Koh, one of the signers, in a comment. "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."

In 2002, the Department of Defense invoked the Solomon Amendment and threatened to cut off about $350 million in Yale University's federal funding if the Law School faculty did not change their twenty-seven year-old non-discrimination policy.

Rather than abandoning this policy under coercion, Yale Law School faculty members filed the case of Robert A. Burt et al v. Donald H. Rumsfeld in the U.S. District Court for the District of Connecticut challenging the legality of Pentagon's interpretation of the Solomon Amendment. The court sided with the Yale professors and the faculty plaintiffs have petitioned to the Supreme Court that it allow their case to be heard at the same time as the FAIR case.

Several other amicus briefs were filed on Wednesday and Thursday, including by Yale University in coordination with six other universities: Columbia, Cornell, Harvard, New York University, University of Chicago and University of Pennsylvania. It concludes that the judgment of the Connecticut district court should be affirmed.

A brief was also filed by the American Association of University Professors, AAUP, an organization of about 45,000 faculty members committed to the defense of academic freedom. The brief, written by Stanford law professor Kathleen M. Sullivan, argues that the Solomon Amendment "uses the funding leverage to coerce universities to abandon protected speech in areas wholly unrelated to the government's exercise of its spending power" in violation of well-settled First Amendment law.

Related Documents:
Summary Brief
Burt. v. FAIR Brief
SAME Amicus Brief
ACLU Amicus Brief
AAUP Brief

Yale et al. Brief