Law Schools That Block Military Recruiting
on Campus Must Pay the Price

By Beth Bar
New York Law Journal
New York Lawyer
September 18, 2007

Yale Law School can be denied certain federal funding for barring military recruiters from its campus, a Manhattan federal appellate court has held.

Citing a 2006 U.S. Supreme Court decision finding that the government's policy of withholding money to schools that bar military recruiters does not violate the First Amendment, the U.S. Court of Appeals for the Second Circuit yesterday reversed a Connecticut federal court judge's contrary opinion.

"Plaintiffs . . . have no First Amendment claim that is not either lacking in merit or that has not already been rejected by the Supreme Court," Second Circuit Judge Rosemary S. Pooler said in a decision joined by Second Circuit Judge Reena Raggi in Burt v. Gates, 05-1732-cv.

Southern District Judge Colleen McMahon, an original member of the panel, recused herself following oral argument.

At issue in the case is the Solomon Amendment, 10 U.S.C. § 983(b), which denies certain federal funding to an academic institution if even one portion of the institution does not allow military recruiters access to its campus.

Judge Pooler explained that because the military is required to bar openly homosexual individuals, the Solomon Amendment conflicted with the anti-discrimination policies of many academic institutions, including Yale's.

"Yale Law School requires any employer seeking the assistance of its career development office to sign a pledge not to discriminate on several bases, which include sexual orientation," the judge said. "The military has not been willing to sign this pledge. Therefore, for many years, the law school prohibited the military from participating in its two yearly programs."

The school backed away from this position in 2002, when its president was told that it would lose significant funding. But a year later, Yale Law professors filed a suit against then Secretary of Defense Donald M. Rumsfeld, arguing that the amendment was unconstitutional.

Connecticut District Court Judge Janet C. Hall ruled in favor of the law school professors in 2005. She held that the Solomon Amendment unconstitutionally conditions federal funding on the surrender of the school's rights of freedom of speech and association.

While the government's appeal was pending at the Second Circuit, the U.S. Supreme Court granted certiorari in Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), 544 U.S. 1017 (2005). The circuit stayed the appeal in Burt pending the Supreme Court's ruling.

On March 6, 2006, the Supreme Court issued a unanimous decision in which it upheld the constitutionality of the Solomon Amendment. One month later, the government moved for summary reversal of Judge Hall's decision, and the Yale professors cross-moved for remand to the district court.

The Second Circuit denied both motions. On appeal, the government argued that the Supreme Court's decision required reversal of Burt and vacatur of its injunction against enforcing the Solomon Amendment.

The Yale professors had argued that Judge Hall's decision should survive because the Supreme Court did not consider in Forum for Academic and Institutional Rights whether the statute violated the First Amendment's right to academic freedom.

But the Second Circuit disagreed. Judge Pooler said the Supreme Court "almost certainly" rejected an academic-freedom argument, and said that the professors identified no authority to suggest that the Court would extend its protection of academic freedom to denying equal access to military recruiters.

"Such authority as exists convinces us that the Court would not extend its academic-freedom jurisprudence to the Solomon Amendment," the judge said.

E. Joshua Rosenkranz, a partner at Heller Ehrman who was lead counsel to the Forum for Academic and Institutional Rights before the Supreme Court case, and Sylvia A. Law, founder of the Forum and a professor at New York University School of Law, both said they were not surprised by the Second Circuit's decision.

"The plaintiffs in the Burt case saw a potential to persuade the Second Circuit to reach the opposite conclusion [as the Supreme Court], but the Second Circuit said no," Mr. Rosenkranz said in a telephone interview.

Paul M. Dodyk, Daniel Slifkin, Stephen E. Frank and Gabriel F. Soledad of Cravath Swaine & Moore and David N. Rosen of David Rosen & Associates in New Haven, Conn. represented the Yale professors in Burt. Calls to Messrs. Dodyk, Slifkin and Rosen were not returned.

Scott R. McIntosh, Peter D. Keisler, Kevin J. O'Connor and Douglas N. Letter represented the government. A call to the Department of Justice's Office of Public Affairs was also not returned.