The Associated Press – 2005-03-28 23:01:27
http://www.firstamendmentcenter.org/news.aspx?id=14781
BRIDGEPORT, Conn. (February 2, 2005) — A federal judge has ruled in favor of Yale Law School faculty members who sued Defense Secretary Donald Rumsfeld in an effort to block military recruiters from campus.
US District Judge Janet C. Hall, in her January 31 ruling, found the government unconstitutionally applied the Solomon Amendment, a 1995 federal law which allows the secretary of defense to deny federal funding to colleges if they prohibit or prevent military recruitment on campus.
The decision means that the law school will be able to turn military recruiters away for the first time in two years to protest the government’s ban against gays serving openly in the armed forces.
“We don’t want to run a law school where outsiders can come in and discriminate against our students based on race, religion, national origin or sexual orientation,” Yale Law School Dean Harold Hongju Koh said yesterday.
In 1978, Yale became one of the first law schools in the country to include gays in its non-discrimination policy. For two decades, to protest the government’s discrimination against gays, the law school refused to let military recruiters participate in its interview program.
In the months following the September 11, 2001, terror attacks, the Pentagon threatened to cut billions in federal aid to Yale and other schools that were refusing to allow recruiters.
Yale had more than $320 million in federal aid in jeopardy and the faculty at Yale Law School agreed to waive the non-discrimination policy for military recruiters.
However, in October 2003, they filed a lawsuit against Rumsfeld, claiming that their free-speech rights were being violated. Hall agreed, and also found that “the Solomon Amendment is not narrowly tailored to advance a compelling government interest, and thus unjustifiably burdens” the faculty members’ First Amendment association rights.
A Constitutional Right to Ban Recruiters
Hall’s ruling (see part 1, part 2) follows one by the 3rd US Circuit Court of Appeals in Philadelphia, which found that universities have a First Amendment right to keep the recruiters away because of their biases. It also said higher educational institutions could do this without fear of losing federal money.
Meanwhile, the US House of Representatives today urged the federal government to contest the 3rd Circuit ruling. The nonbinding resolution, approved 327-84, expresses support for the Solomon Amendment, named for the late Rep. Gerald Solomon, R-NY.
“This decision threatens to severely damage the ability of the military to recruit the highly qualified candidates necessary during a time of war,” said Rep. John Kline, R-Minn. But opponents of the resolution said colleges with anti-discrimination policies are only preventing recruiters from using campus facilities, not from contacting students.
Rep. Barney Frank, D-MA, added that supporters of the Solomon Amendment “are the ones who are depriving the armed services of able-bodied people” because of the ban on gays. “You are the ones who have driven thousands, literally thousands, of perfectly capable men and women out of the military.”
The Justice Department said last month that it would ask the Supreme Court to overturn the 3rd Circuit’s ruling, saying it needs access to law schools to fill the ranks of the military’s Judge Advocate General Corps.
The House last year passed legislation that would have expanded the law to add CIA and other military-related funding to the list of funds denied colleges that bar recruiters. The Senate never took up the legislation.
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