Yale Law School has temporarily suspended its requirement that all recruiters sign a nondiscrimination policy, but pledged Tuesday to fight to maintain the policy without jeopardizing roughly $350 million in federal funds.
Yale’s decision comes after both Harvard and Stanford bowed to a government ultimatum to let the military attend official recruiting events or else lose hundreds of millions of dollars in federal grants.
Under a 1996 measure known as the Solomon Amendment, the Department of Defense has warned about 15 law schools over the past year that they will lose all their federal research money if they do not allow official military recruiting visits despite the military’s “don’t ask, don’t tell” policy.
In the face of a Monday deadline from the defense department, Yale will allow Judge Advocate General Corps (JAG) recruiters to participate in its official fall interview program.
But Yale President Richard C. Levin said Tuesday that the school will seek “a determination of whether the law school’s current policy satisfies the legal requirements.”
Yale’s policy allowed the military to hold information sessions on campus and provided recruiters with the names and contact information for law students. Only the officially-advertised interview program—which takes place off campus—was reserved for employers that could sign a nondiscrimination statement.
Yale Law School Dean Anthony T. Kronman said in a statement that the university has told the military “it believes the Law School’s recruitment policy to be in compliance with the Solomon Amendment” and “it intends to seek an authoritative determination of the legality of this policy.”
But Yale so far has only committed to challenging the military through administrative channels with the defense department, a method Harvard tried without success before announcing on Aug. 23 it would allow the military an official place on campus.
Whether Yale will extend the fight to the courts remains unclear.
Extent of the Challenge
When Harvard Law School was debating whether to reverse its policy against military recruiting this summer, officials say the school’s administrators met with high-level civilian and military defense department officials and determined that the department would not back down.
“It was clear to us that the evaluation was not going to change within the short term,” says Kevin Casey, Harvard’s senior director of federal and state relations.
In previous years, Harvard Law School only allowed military recruiters to come on campus after an invitation from a student group and did not provide student contact information—a policy previous military reviews had found complied with the Solomon amendment.
But the defense department took a harder line with its evaluations last spring of Harvard and Yale’s policies.
Despite the failure of Harvard’s lobbying efforts, Yale has not lost hope that the defense department will agree to a compromise policy short of officially-sanctioned visits.
Kronman met with JAG officials in Washington last week and said his description of the military’s access to Yale students was “favorably received.”
And although Harvard sent two unsuccessful letters asking the defense department to reevaluate its compliance, Harvard’s original policy was more restrictive toward the military than Yale’s.
While Yale spokesperson Tom P. Conroy says the school’s initial efforts to challenge the interpretation will go the department, officials have been reluctant to say whether they would actually defend their policy in court.
The statements of Levin and Kronman were silent on a potential appeal to the courts.
Yale’s Rankin Professor of Law Drew S. Days III, chair of an advisory committee on Yale’s response to the military, says legal action “is certainly a possibility” but that no decision has yet been made.
But both student spokespeople for Yale’s Student/Faculty Alliance for Military Equality (SAME), which was founded to oppose the military funding threat, say they expect Yale to take the decision to court if necessary.
“My sense is that yes, they have said that they are looking for a definitive determination of whether our current practices are in compliance with the Solomon Amendment,” says Matt W. Alsdorf, a second-year law student. “If they don’t succeed in whatever administrative options the Department of Defense has, I imagine it will go to court.”
“In terms of talking to professors and administrators, certainly the emotional and intellectual commitment is there to take this as far as they can,” Alsdorf adds.
At a meeting in early September, the law school faculty voted unanimously to fight the military pressure.
Testing Harvard’s Backbone
Harvard Law School faculty have been similarly united in their anger at being forced to allow recruiting on campus. Dean Robert C. Clark will participate in a protest Monday in front of Langdell Library.
But unlike Yale’s president, Harvard President Lawrence H. Summers issued no public statements when the school announced its decision.
Summers made several public efforts last year to improve relations between Harvard and the military, praising military service and becoming the first Harvard president in 30 years to attend the Reserve Officers Training Corps commissioning ceremony.
Harvard Law School third-year student Lindsay Harrison attributed Harvard’s decision not to mount a court fight to Summers’ views.
“Harvard could have taken the lead on this, but chose not to, I suspect because of President Summers’ strong pro-military stance,” Harrison writes in an e-mail.
Harrison adds that she hopes a successful challenge by Yale would “show President Summers that Harvard’s reputation and standing will continue to decline relative to Yale and the other top-five law schools until he demonstrates leadership on difficult issues, such as JAG recruiting.”
Although Summers was unavailable for comment yesterday, he said in a September interview that while he opposed “don’t ask, don’t tell,” complying with the military was “the right step for the University.”
Harvard Law School spokesperson Michael A. Armini also reiterated Clark’s opposition to “don’t ask, don’t tell” yesterday but declined to explain why Harvard had not mounted a suit. Clark was also unavailable for comment.
But Provost Steven E. Hyman said in an interview Tuesday that Harvard officials believed a successful court challenge on the legality of Harvard’s original policy—allowing on-campus recruiting through a student group—would simply be met with Congressional strengthening of the Solomon statute.
Casey says Congress has been adamant about maintaining equal campus access for military recruiters. Any court victory would be “short-lived,” he says.
An administration official says the University was reluctant to waste its political capital on an issue that enjoyed so much Congressional support.
Making a Statement
Yale students and faculty says fears of Congressional action should not dissuade universities from mounting a court challenge.
“Whatever happens legally, unless there’s a successful Constitutional challenge brought, Congress will always retain the right to close any loophole or any finding of compliance,” says Kenji Yoshino ’91, a Yale professor who specializes in discrimination and gay rights law.
“Ultimately, I would compare this most to the boy scouts case, where the [gay] boy scouts lost in court but won in the court of public opinion,” he says.
Alsdorf says even if Congress were to effectively reverse a court decision in favor of Yale, the action would stimulate public discussion on “don’t ask, don’t tell” and the defense department’s methods.
SAME spokesperson Lindsay B. Barenz, a second-year Yale law student, says the group will hold a protest tomorrow, when the Air Force JAG program will be interviewing students.
Harvard Law School’s gay rights group, Lambda, has scheduled a rally Monday to coincide with the first official JAG recruiting visits here. Along with Clark, Frankfurter Professor of Law Alan M. Dershowitz and other faculty and students are scheduled to speak at that action.
Students including Harrison, a Lambda board member, will fill JAG interview spots on Monday to discuss “don’t ask, don’t tell.”
—Staff writer Elisabeth S. Theodore can be reached at firstname.lastname@example.org.