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Comment on this article
The Law Professors vs. the Military
January/February 2004
In October, most of the Law School faculty sued the Department of Defense over on-campus recruitment. Following are two commentaries, one from the lead plaintiff in the lawsuit and one from a professor who did not join the suit.
Why We Are Suing
by Robert A. Burt, Alexander M. Bickel Professor of Law
As a service to our students, Yale Law School administers an employment program that provides computerized scheduling of job interviews with, and information about, prospective employers. Since 1978, the Law School has required all employers participating in our program to pledge that they exclude no one from employment on grounds of race, gender, religion, or sexual orientation. We adopted this nondiscrimination requirement as part of our general educational mission to ensure that all of our students are treated with equal respect in any school-sponsored activity, inside or outside the classroom. In our employment program specifically, the faculty concluded that none of our students should be subjected to the indignity of encountering a discriminatory job listing (“No ______s need apply”).
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We are not willing to practice invidious discrimination.
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The United States military cannot sign our nondiscrimination pledge because it withholds employment based on sexual orientation. We have not barred the military from access to our students on this ground. For the military and other employers unwilling to sign our nondiscrimination pledge, we make available contact information for all of our students and, at the invitation of any individual student or student organization, we permit use of Law School meeting rooms. We understand that some of our students are interested in employers who do not qualify for participation in the interview program we administer. We respect the right of these students to reach their own moral judgments about prospective employers. But in our own programs, we are not willing to practice, or actively to assist in the implementation of, invidious discrimination.
In May 2002, the Department of Defense announced that unless the Law School exempted the military from our nondiscrimination pledge, the entire university would lose almost all federal funds—more than $300 million, most of which goes to the School of Medicine, primarily for cancer research. (None of these funds go to the Law School.) In response to this demand, the Law School faculty voted to exempt the military temporarily, in order to protect the university against loss of federal funds while various means were pursued to vindicate our nondiscrimination policy. After this temporary exemption had lasted for three semesters, it became apparent that none of the approaches by university officials to the DOD offered any clear prospect that we would be able to reinstate our nondiscrimination policy. Accordingly, in October 2003, 44 members of the Law School faculty—two-thirds of the voting members—filed suit in Federal District Court for Connecticut seeking a declaration that the DOD had no constitutional or statutory authority for its threatened action. (The DOD invoked the Solomon Amendment, a law that authorizes the federal government to cut off federal funds if a university prevents military recruiting on campus. Our suit charges both that the DOD has misinterpreted the Solomon Amendment and that the amendment as interpreted by the DOD would itself violate the Constitution.) A few weeks later, a separate lawsuit was filed by two Law School student organizations seeking the same result.
We have gone to court to carry out our obligations as teachers and as members of the university faculty. As teachers, we have a duty to our students to protect them against unjust discrimination. The military exclusion of gays and lesbians based on their sexual orientation has no rational relationship to their capacity to perform military service. The Supreme Court recently concluded that state criminal sodomy laws are unconstitutional because they “demean the lives of homosexual persons.” The military exclusion has the same wrongful implication.
As faculty members, we also have a duty to defend the autonomy of the university in carrying out its educational mission. The Supreme Court recently ruled that universities are constitutionally entitled to deference in making “educational judgments [about matters] essential to [their] educational mission.” Such deference must apply not only to university decisions favoring diversity through affirmative-action admissions policies, as the Court specifically held; universities must also be free to ensure that the diverse characteristics of their students—not only race but other defining attributes such as sexual orientation—are fully respected and protected in the academic environment.
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Since WWII, universities have become increasingly dependent on federal funding.
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Moreover, the threat to university autonomy in our case has implications beyond our educational goal of protecting our gay and lesbian students. If the DOD action is upheld, virtually no issue of educational policy would be exempt from the government’s dictate. Government control over universities' federal funding could potentially become government control over universities' admissions, courses of study, or faculty hiring.
Since World War II, American universities have become increasingly dependent on federal government funding to maintain research activities, especially in the sciences. The government does have a legitimate interest in assuring that funds given to universities for, say, cancer research are not spent for some other, unrelated purposes. But in our case the government is trying to use its cancer research funding as a lever to control the Law School faculty’s decisions about matters with no conceivable relevance to the government’s funding program.
We cannot properly serve as teachers and scholars if the federal government is able to exploit the financial dependence of universities in order to override educational judgments on any matter of its choosing. We cannot properly educate our students if we are forced to engage in activities that demean the equal dignity of some of our students. We look to the courts for protection against these wrongful exercises of government power.
Why Yale Should Open its Interview Program to the Military
by Peter H. Schuck, Simeon E. Baldwin Professor of Law
There is much to applaud in the legal challenge brought by my Yale Law School colleagues. “Don’t ask, don’t tell” is not a principled policy of tolerance or equality. Instead, it is a political compromise between the earlier flat ban on gays in the military and the full acceptance of them that equality demands. It places both gay and straight soldiers in a painfully ambiguous situation, encourages dissimulation and exploitation (if not outright blackmail) of gays, and reinforces existing stigmas. In practice, the policy has caused the cruel outing and arbitrary discharge of many gay soldiers who boast proud records of devoted military service. DOD’s refusal to clarify its own policies and interpretations under the Solomon Amendment has, moreover, created needless uncertainty, contention, and, now, litigation. At the same time, its opaque regulatory process, which seems to permit the government to cut off funds without affording Yale administrative review, raises serious questions of due process. For all these reasons, a legal test of DOD’s policy is both overdue and welcome—although, like the federal court that recently ruled preliminarily against the law schools in a similar suit, I do not see how this law violates the First Amendment rights of Yale faculty and students.
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“Don’t ask, don’t tell” is not a principled policy of tolerance or equality.
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Let us assume that my litigating colleagues turn out to be right on the law—either that our interviewing rules as applied to the military do not violate the Solomon Amendment or that this law violates the Constitution. This ruling would still leave us with a very important question of pedagogical policy: should Yale have adopted this policy toward military recruiters in the first place?
I have my doubts. Let me be clear about my own normative position: I oppose “don’t ask, don’t tell.” I favor equal treatment for gays. I support the assertion of academic autonomy in the face of political pressures. My colleagues are right to defend these positions. But Yale should be dedicated to another norm as well. As a matter of principle, Yale should treat our students as mature individuals who are sufficiently well educated to be able to assess the evidence and make their own choices among potential employers without needing to be “protected” by us.
Why should Yale screen employers' practices and norms for some of the most thoughtful, critical, and well-informed young adults in the world? Can’t students make up their own minds about whether they want to work for organizations whose views on sexual orientation may differ from those of their teachers? What vision of intellectuality, character, and maturity does Yale convey when it relieves students of their duty as autonomous adults and citizens to make their own moral choices? Given Yale’s vaunted quest for diversity, is it not inconsistent, perhaps even intolerant, for Yale to place even small obstacles in the path of its students' exposure to a worldview—opposition to gays in the military—that was resoundingly endorsed by a democratic (and Democratic) Congress, affirmed by administrations of diverse ideological stripes, upheld by the courts, and preached by some of the great religions to which many of the students subscribe? How much liberality and subtlety of mind do Yale faculty exhibit when their interviewing rules treat all versions of that worldview as a single species of invidious homophobia to be categorically condemned and marginalized—regardless of whether it proceeds from the kind of blind hatred that murdered Matthew Shepherd or from ethical traditions or prudential concerns shared by many thoughtful, morally scrupulous people?
In truth, Yale’s interviewing policy is not meant to be evenhanded. Rather, it is designed to allow Yale faculty to make a political and moral statement about employers whose practices offend us. Consider an analogy. Suppose the Acme Corporation made it a bit more difficult for black applicants, but not for others, to arrange job interviews—say, by making blacks call an additional number or travel farther. Acme could not legitimately defend this practice on the ground that it did not discriminate against black applicants but instead merely denied them the benefit of the faster-track option available to other students. This analogy, I think, indicts Yale’s interviewing policy a fortiori. Here, after all, Yale is disadvantaging an employment practice that unlike race discrimination is perfectly legal, a practice that reflects a hard-won political and moral consensus (although one that I do not share).
Yale’s policy should be truly evenhanded. It should allow its placement resources to be used on an entirely equal basis by all employers whose policies with regard to sexual orientation are legal in the jurisdictions where their lawyers work, so long as they affirmatively disclose those policies to students and certify their legality. The real issue is not what Yale thinks about the military’s refusal to hire gays—the school has already made that crystal clear—but how our students view it. Yale’s moral and pedagogical duty to our students is to cultivate their capacity for independent thinking, explain the faculty’s view (if, as here, it has one) on “don’t ask, don’t tell”—and then get out of the way. The students’ duty is to listen carefully—and then make up their own minds, without their professors’ thumbs on the scales.  |
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