Military Recruiting Challenged

Military Recruiting Challenged

Lawsuits by Yale faculty against Solomon Amendment survives hurdle

Facing the threat that Yale University might lose $300 million in federal contracts and financial assistance, its law school faculty voted in the fall of 2002 to allow military recruiters to have equal access to its campus. Until that time, the school had excluding the military because of its discriminatory policies toward openly gay and lesbian service members.

Students and faculty simultaneously called on the university to file a lawsuit challenging the constitutionality of the Solomon Amendment, the federal legislation that the Defense Department used to bully its way back onto the Yale campus, but the university refused.

So groups of students and faculty members, separately, filed their own lawsuits.

The government argued that only Yale University itself could bring a lawsuit to challenge the Solomon Amendment, contending that any interest the students and faculty members had in the issue was not direct enough to give them “standing,” a concept used to ensure that courts decide only real “cases and controversies” as the Constitution requires.

Hall found that both groups of plaintiffs did have a personal stake, and that both cases raised valid constitutional issues. She also found that the dispute was “ripe” for judicial resolution, contrary to the government’s argument that because the Defense Department hadn’t moved to end Yale’s federal money, there was not yet a dispute to be resolved.

The student lawsuit was filed by two organizations: Student/ Faculty Alliance for Military Equality, and Outlaws, a group specifically formed to join the lawsuit. The faculty lawsuit enlisted 44 law school professors.

The students claimed that the Defense Department threat to cut off funding violates the students’ First Amendment rights of expressive association by forcing them to be part of an institution sending a message of anti-gay discrimination, and similarly that the Solomon Amendment is an unconstitutional form of viewpoint discrimination. The students also argued a violation of their rights to equal protection of the laws guaranteed by the Fifth Amendment. The faculty also made First Amendment free speech, associational, and equal protection claims.

Hall found that the faculty members could make the First Amendment association claim, but not the students.

“The principles of the ‘association’ that is Yale Law School are set by the faculty,” she wrote, “and can change at any time. While the students, as they allege, may have chosen YLS because of its non-discriminatory principles, they have not alleged that they have an institutional voice in how those principles are set or maintained.”

Hall also found that the students’ viewpoint discrimination claim suffered a similar defect and had to be dismissed.

But, in the separate opinion concerning the faculty lawsuit, Hall upheld the faculty’s association and viewpoint discrimination claims precisely on this point—that the faculty’s vote to let the military on campus was compelled by the government’s threat to withhold funding.

Hall found the students should be allowed to pursue a different First Amendment claim, as consumers of the university’s non-discrimination message.

“The students have alleged that they are recipients of the faculty’s message, through the non-discrimination policy, that discrimination against gays and lesbians is wrong and will not be tolerated within the law school community, and that, but for the Solomon Amendment and the defendant’s application of it, they would receive that message,” she wrote. “They thus have standing to pursue this claim.”

Hall also found that the students could assert their equal protection claim, though she raised cautions about its prospects for success.

“The plaintiffs allege that, due to the defendant’s actions, their student members have suffered the personal injury of being subject to the repeal of the non-discrimination policy as to them only, and that these actions are ‘arbitrary,’ unrelated to any legitimate governmental objective,” she wrote. “The court notes that the Second Circuit has held the ‘Don’t Ask Don’t Tell’ policy to be constitutional, making the plaintiffs’ claim that recruiting functions associated with the policy are unconstitutional dubious at best. However, courts must be cautious not to confuse the merits of a claim with a plaintiff’s standing to assert it.”

Hall rejected the government’s contention that the case was not “ripe” for litigation, another part of the standing requirement.

“This controversy, as it exists today, is the culmination of years of discussions and conflict between the Dof D and Yale Law School,” she wrote, also finding that Department of Defense ’s actions had “worked ‘substantial hardship’ on the plaintiffs and will continue to do so if judicial review is withheld,” since the law school faculty was forced to rescind its non-discrimination policy in the face of a substantial economic threat.

Hall’s opinions do not decide the ultimate merits of the cases yet to be litigated, but having survived the initial procedural hurdles, the plaintiffs are now in a position to require the government to file a substantive answer to their complaints.

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