I happened to be at Yale in October 2003 when Navy Judge Advocate General recruiter Brian Whitaker was scheduled to meet with students interested in serving as Navy lawyers. Virtually all Yale law students had signed a petition vowing not to meet with Whitaker or other JAG recruiters. The petition was publicly posted inside the law school as part of a protest display that included black and camouflage wall hangings. The one law student scheduled to meet with Whitaker cancelled the interview.
The ostensible cause of the consternation occasioned by Whitaker’s visit was the military’s compliance with the federal “don’t ask/don’t tell” law on homosexual conduct in the armed forces. Law schools across the country had hindered military recruiters from meeting with law students because the military’s adherence to the “don’t ask/don’t tell” law violates nondiscrimination policies enforced by the schools against on-campus recruiters.
Whitaker’s putative right to visit Yale Law School despite its nondiscrimination policy was attributable solely to the Bush administration’s enforcement of the Solomon Amendment requiring federally-funded universities to open their doors to military recruiters or risk losing federal funds. After 9/11 the Defense Department began to threaten enforcement of the amendment, and law schools began to comply. At Yale, for example, the law school has waived its nondiscrimination policy in order to preserve the university’s annual $350 million in federal funding only since the fall of 2002. Then-law school Dean Anthony Kronman explained:
We would never put at risk the overwhelmingly large financial interests of the University in federal funding. We have a point of principle to defend, but we will not defend this–at the expense of programs vital to the University and the world at large.
Dean Kronman paid a backhanded tribute to the “money talks” impetus behind the Solomon Amendment. The Kronman Doctrine provides: For the good of the world, Yale must retain access to your money.
I thought that the Supreme Court’s 8-0 decision in Rumsfeld v. FAIR ruling against the law schools’ opposition to the Solomon Amendment would end Yale’s resistance. But like a Stakhanovite worker, Yale labored on to overachieve in opposition to the Solomon Amendment. On Monday the Second Circuit ruled against Yale in Burt v. Gates, Yale’s very own lawsuit against the Solomon Amendment. Today’s Yale Daily News reports on the Second Circuit decision here.
I wrote about Yale and the FAIR litigation two years ago in “JAGs not welcome.” In that column I concluded that some lawsuits deserve a fate worse than failure. While decent military officers like Brian Whitaker suffer the rudeness of their purported betters at Yale Law School and elsewhere in silence, the armed services of the United States are actively defending these schools from mortal peril. The rank ingratitude of those who should know better is a disgrace; it deserves to be widely recognized as such.
To comment on this post, go here.