Court Monitor

Don’t Want Us? Then Don’t Take Our Money

“No funds . . . may be provided by contract or by grant . . . to an institution of higher education . . . if the Secretary of Defense determines that that institution . . . either prohibits, or in effect prevents . . . the Secretary of a military department or Secretary of Homeland Security from gaining entry to campuses, or access to students . . . .” This is the renowned Solomon Amendment, codified at 10 U.S.C. § 983 (as amended).  It is the bane of liberal professors everywhere, who want to take taxpayers’ money while banning military recruiters.

Yale University for years excluded military recruiters from its Career Development Office.  The Yale faculty dislikes the decade-old military policy of “Don’t Ask, Don’t Tell” because it bans the advocacy of homosexuality among enlisted men.

After unsuccessfully trying for a year to formally recruit at Yale, U.S. Army Colonel Clyde Tate had enough.  On May 29, 2002, he informed Yale University President Richard Levin that “unless we receive new information from you by July 1, 2002, showing that policies and practices of your institution have been modified to conform with federal requirements. . .we will consider forwarding this matter to the Office of the Secretary of Defense with a recommendation of funding denial.”

Yale responded by surrendering.  Though well-endowed and home to both leading presidential candidates, Yale knew it would be nothing without the $300-plus million that the federal government pours into it each year.

The Yale faculty promptly held a meeting to save the school's gravy train.  The faculty approved a “temporary” suspension of its own policy in order to allow formal recruiting by the military.

Case closed?  Not in this era of judicial activism. Student groups named “Outlaw” and “Student/Faculty Alliance for Military Equality” sued in federal court to force taxpayers to continue funding Yale even if it reverts to its ban on military recruitment. So far, a federal judge seems happy to oblige.  A top New York City corporate law firm took up this liberal cause, presumably on a “pro bono” basis.  Much of the pro bono work done by wealthy corporate law firms is to undermine traditional values and promote judicial activism.

Secretary of Defense Donald Rumsfeld moved to dismiss the lawsuit for lack of standing and ripeness.  Students, after all, are not harmed by recruiters and it was the Yale faculty itself that voted to lift the ban.  Besides, the action was premature because the Department of Defense had not made a final decision about Yale’s funding.  

Federal district judge Janet Hall held against Rumsfeld.  Student Members of SAME v. Rumsfeld, 321 F. Supp. 2d 388 (D. Conn. June 9, 2004).  While she dismissed the students’ most far-fetched arguments, she allowed their claim of a violation of equal protection under the Constitution.

Judge Hall even held that students have a constitutional “right to receive information” – to wit, the “information” of Yale’s intolerance towards military recruiters.  While the federal government had not censored Yale in any way, the Judge declared that its condition on federal funding may interfere with Yale’s speech. 

“The students have alleged that they are recipients of the faculty’s message [in favor of homosexuality] . . . and that, but for the Solomon Amendment and the defendant’s application of it, they would receive that message,” Judge Hall held.  “They thus have standing to pursue this claim . . . .”

That strained argument is difficult to follow, as sensible conditions on federal funding have always limited what others might hear.  When taxpayers provide the money, they have every right to insist on fair treatment as ensured by Congress.

Judge Hall has not yet invalidated the Solomon Amendment, but she opened the door to doing so.