April 14, 2006

To Litigate Or Not to Litigate

The U.S. Supreme Court’s unanimous ruling in March that law schools must provide the military with recruiting tools equal to those offered other employers has left plaintiffs in two pending cases considering their options.

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The Supreme Court’s 8-0 ruling against a coalition of 36 law schools and faculties — the Forum for Academic and Institutional Rights — that had challenged the Solomon Amendment left the law schools with the threat of losing federal funding if they limit military recruiters’ access to campuses. Many law schools have traditionally limited access, contending that the military’s discriminatory policies against gay people violate colleges’ anti-bias policies.

Though both the University of Pennsylvania and Yale University law schools say military recruiters have plenty of access, the lopsided Supreme Court ruling has forced faculty members involved in military recruiter cases at those institutions to reconnoiter.

The FAIR case contended that the Solomon Amendment violates First Amendment rights by conditioning federal funds to institutions on the support of military recruitment on campus, which excludes openly gay students. The Penn and Yale cases also make First Amendment claims, but take the separate step of trying to show that procedures are already in place that do not inhibit military recruitment.

At Penn, military recruiters have access to law students through interviews on the university’s main campus, but they cannot interview them on the law school’s turf, and law school career services personnel aren’t at their disposal. David Rudovsky, a senior fellow at Penn’s law school, and one of the plaintiffs, said that differences between access for military recruiters and other employers are “quite marginal,” but that the Supreme Court ruling brought home Congress’s requirement that access is “equal in quality and scope.”

Chai R. Feldblum, a law professor at Georgetown University and a plaintiff in the Supreme Court case, said she thinks that “that symbolic mode of protest has been declared by the Supreme Court to be not available,” so it’s “incumbent on [Yale and Penn law schools] to just respond with other types of protests,” rather than continuing with litigation.

Career planning and placement staff members at Penn will discuss later this month whether to change the recruiting logistics for military recruiters. “If the law school keeps it as it has been, we will not go forward,” Rudovsky said. “We couldn’t make an argument that we’re in compliance with the statute.”

If the law schools are found to violate the statute, they could potentially lose federal funding, not only to the law school, but to the entire university.

“If it were just the law school, it’s not clear to me we get enough money that we wouldn’t be willing to give it up,” said Stephen Burbank, a Penn law professor and the primary plaintiff in the case.

But as it is, the law school has been directed by the university to allow the military to recruit. Burbank said that various possibilities are being tossed around, including moving all recruiting for all employers to the main campus. “If we do all of our recruiting on central campus,” he said. “I don’t think anybody could complain.”

Burbank said the university, which has the same nondiscrimination policy as the law school, takes the stance that, because the military has been found not to be acting unconstitutionally, it is therefore not violating the policy. “The law school’s view is that they are,” Burbank said. “Our policy is not confined to what is illegal.”

Yale’s law school only prevents the military from using law school career services employees for help in recruiting, and the school already has one victory on the books. In January 2005, a federal district court in Connecticut declared the Solomon Amendment unconstitutional, and barred it from being enforced at the law school. The case is now pending before the U.S. Court of Appeals for the Second Circuit.

Yale is also currently deliberating over whether to go forward, and whether, given the Supreme Court ruling, victory is anything more than a pipe dream. “I’m not averse to losing when you’re committed to a principle,” said Robert Burt, a Yale law professor and plaintiff in the case. “But will it harm the principle to go forward?”

Burt said that, unlike the FAIR case, which raised only a First Amendment issue with the Solomon Amendment, the Yale case raised an academic freedom issue, so there may still be some legal wiggle room. He said that there’s not a lot of Constitutional law that deals with academic freedom, but that if faculty members involved in the case “decided it is virtually certain we will lose, we might not want to end up with a negative precedent.”

Burt added that “we’re not at all happy that the case that went to the Supreme Court was this class action, which was not clearly focused on any particular law school.” In Yale’s district court win, he said, the judge found in the factual hearing that Yale’s policy in no way disadvantaged the military in its recruitment efforts. “That was a finding about our program in our case,” Burt said. “The problem is, the Supreme Court indicated that the judiciary should not make any factual inquiry into this question.”

The Supreme Court decision did affirm the right of law schools to protest military recruiters in a variety of ways. Said Burt, “You can bet law schools, including Yale, will take advantage of that invitation.”

— David Epstein

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