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Statement of Dean Harold Hongju Koh Regarding Burt v. Gates Decision, September 19, 2007

Yale Law School Dean Harold Hongju Koh has released the following statement regarding the Burt v. Gates decision:

In 1978, Yale Law School adopted its longstanding non-discrimination policy, which states:

"Yale Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients. All employers using the school's placement services are required to abide by this policy."

An employer who is unwilling or unable to abide by the policy in its entirety has not been traditionally permitted to avail itself of the interview-coordination services provided by the Law School's Career Development Office.

Since the spring of 2002, the Defense Department has interpreted the Solomon Amendment to require denial of federal funds to institutions of higher education that withhold assistance from military recruiters who will not pledge to refrain from discrimination on the basis of sexual orientation in the recruiting process.  A group of Yale Law School faculty filed suit in the District Court for the District of Connecticut challenging the legality of the Defense Department's interpretation of the Solomon Amendment.  On January 31, 2005, this challenge was upheld by the District Court and an injunction was granted enjoining the enforcement of the Solomon Amendment against the Law School.  The Secretary of Defense appealed to the Court of Appeals for the Second Circuit, but while the Second Circuit decision was pending, the United States Supreme Court issued a ruling in Rumsfeld v. FAIR upholding the constitutionality of the Solomon Amendment. This week, eighteen months after the FAIR case came down, the Second Circuit panel (with one member recused) issued an opinion reversing the District Court's judgment in Burt v. Gates, and remanding the case with instructions to vacate the injunction granted by the District Court.

As a plaintiff in Burt v. Gates, I am disappointed by this outcome.  As a member of the Yale Law School community, I am proud that we defended our right to academic freedom and spoke up for the equal opportunity of all of our students to work for our military services. Yale Law School, as a member of the Association of American Law Schools, has an obligation to ameliorate the impact of discriminatory hiring practices.  We intend to meet this obligation and will work alongside our students to identify the best ways of doing so, in accordance with the law. We continue to look forward to the day when all members of our community will have an equal opportunity to serve in our nation's armed forces.