Statement of Dean Harold Hongju Koh on Supreme Court Decision on Military Recruiting
The Supreme Court's decision in the FAIR case, which was issued today, reversed a Court of Appeals decision granting a preliminary injunction against the Defense Department based on a limited factual record. We are studying it carefully, to understand its implications for the suit by some Yale Law School faculty members in Burt v. Rumsfeld, which involved a more extensive factual record, a permanent injunction against the government, and statutory interpretation arguments that were not before the FAIR Court. It will take some time, and probably further hearings in the Burt case, before the full implications of the FAIR case for Yale Law School are sorted out.
Obviously, we are disappointed that the Court was not more receptive to the First Amendment claims that underlay our defense of our nondiscrimination policy. The Court read the Solomon Amendment to require that military recruiters who discriminate against some of our students "must be given the same access as recruiters who comply with the [nondiscrimination] policy." The Court also claimed that "[t]here is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse," although their ruling seems to require law schools to endorse the motto: "Join the Military, but not if you are gay or lesbian." Significantly, the Court states that "[l]aw schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds." The Court notes the Solicitor General's acknowledgement that "law schools 'could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.'" In short, the Court's decision is clearly an invitation for law schools to engage in more speech, not less, in the months ahead. Many of us here at Yale Law School plan to accept that invitation to continue to speak out against the government's discriminatory military recruiting practices.
We look forward to the day when the government gives all of our students--without regard to their sexual orientation--an equal opportunity to serve our country by working in our Nation's armed forces.