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A Message from Dean Harold Hongju Koh: FAIR Forum at Yale Law School

As you know, the Defense Department has interpreted a law called the Solomon Amendment to require denial of federal funds to institutions of higher education that withhold equal access from military employers who insist upon discriminating in recruiting based on a job applicant’s sexual orientation. Last year in Rumsfeld v. FAIR, the U.S. Supreme Court upheld that interpretation against a First Amendment challenge, stating that "the Solomon Amendment regulates conduct, not speech."

In FAIR, the Supreme Court stated that

"Law schools remain free under the [Solomon Amendment] to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr[anscript] of Oral Arg. 25 (Solicitor General acknowledging 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 keeping with the Court’s ruling in this respect, members of our community have organized a "FAIR Forum" –two panels to be held in Room 127 of the Law School on Thursday, October 5 at 4:30 P.M. and Friday, October 6 at 10:10 A.M. – to discuss the pros and cons of the military’s continuing policy of excluding gays, lesbians and bisexuals from military service. Last month, I invited military recruiters from the Army, Navy, and Air Force to visit Yale Law School to participate in these panels. Although we are still awaiting final responses, we remain hopeful that one or more military recruiters will attend the panels to discuss this vital public issue with our community.

Precisely how the FAIR ruling will affect Yale Law School’s longstanding nondiscrimination policy remains contested. In Burt et al. v. Rumsfeld, a lawsuit brought by individual Law School faculty members, the U.S. District Court for Connecticut permanently enjoined the application of the Solomon Amendment to Yale Law School. At this writing, the injunction remains in place, and that ruling is under review before the U.S. Court of Appeals for the Second Circuit. Even while that injunction is in place, however, U.S. military recruiters remain free, as always, to visit Yale Law School, in order to speak, listen, and talk to any of our faculty or students, including any who might be interested in summer or permanent employment with any branch of the military service.

The other invited speakers and a fact sheet about the history of this matter are available from the website links below. I hope that all of you will participate in this important community discussion. We continue to look forward to the day when all members of our community have an equal opportunity to serve in our Nation's armed forces.

FAIR Forum poster
Fact sheet on Military Recruitment at Yale Law School
Video of panel on "Achieving Equality: Strategies for Defeating Don't Ask, Don't Tell"