Amicus Curiae Brief — Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Supreme Count, 0s

FILED

No. GQ | SEP 2 i 2005

IN THE

Supreme Court of the Hnited States

DONALD H. RUMSFELD,

SECRETARY OF DEFENSE, ET AL.,

Petitioners,

Vv.

FORUM FOR ACADEMIC AND

INSTITUTIONAL RIGHTS, ET AL.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF AMICI CURIAE OF ROBERT A. BURT,

ET AL. ON BEHALF OF RESPONDENTS

PAUL M. DoDYK

825 Eighth Avenue

New York, NY 10019-7475

Teleohone: (212) 474-1000

Counsel of Record

DAVID N. ROSEN DANIEL SLITKIN

400 Orange Street ALMA HADAR

New Haven, CT 06511 CRAVATH, SWAINE & MOORE LLP

Telephone: (203) 787-3513 825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Counsel for Amici Curiae

September 21, 2005

a a Se ee

i

TABLE OF CONTENTS

Page

TU Oe Ce a ii

CR AIR CAN OMIA TS DL 1

STAT ON PACT on 4

I. THE YALE LAW SCHOOL’S

NONDISCRIMINATION POLICY PROTECTS

GAYS, LESBIANS, AND BISEXUALS FROM

ALL FORMS OF DISCRIMINATION ................:2:000000+ 4

Il. THE DOD HAS SUPPRESSED THE LAW

SCHOOL COMMUNITY’S NATIONWIDE

PROTEST OF THE MILITARY’S

DISCRIMINATION AGAINST GAYS,

LESBIANS, AND BISEXUAL. .............c0csssssseesesseseees 7

DETR 0 chvsvisicperionhinnapsanevimmpinsginreempenemmanpanpiniinn 10

I. THE DOD HAS VIOLATED THE FACULTY

MEMBERS’ RIGHT TO ACADEMIC FREEDOM.... 10

Il. THE DOD HAS SUPPRESSED THE FACULTY

MEMBERS’ FREEDOM OF ASSOCIATION........... 13

Ill. THE DOD FAILED TO INTRODUCE ANY

EVIDENCE THAT ITS RECENT COERCIVE

CONDUCT IS NECESSARY TO ACHIEVE ANY

ss

TABLE OF AUTHORITIES

Page(s)

Cases

Bd. of Regents of the Univ. of Wis. v. Southworth,

Se Es AEF GD cic tiinsticivdasicisibatliitaipiiniatatislbgniceisitan’ 12

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).......:... passim

Burt v. Rumsfeld, 354 F. Supp. 2d 156 (D. Conn.

OUI i cthinnsdpaseniieieistinscittingiaiaiiipiiinindhuhalaiiaiiebipsiansibaaes passim

Forum for Academic & Institutional Rights v.

Rumsfeld, 291 F. Supp. 2d 269 (D.N.J. 2003)..........000000++ 9

Grutter v. Bollinger, 539 U.S. 306 (2003) ............0sc00-0 12, 18

Henry v. First Nat’l Bank of Clarksdale, }

SOS FG BN Fe, Te i ai cithicstatierssticeincprinttnsias 14

Hurley v. Irish-American Gay, Lesbianand .

Bisexual Group of Boston, 515 U.S. 557 (1995).......15, 16

Johanns v. Livestock Mktg. Ass'n,

fk? Se Ee REE 16

Kirkland v. Wallace, 403 F.2d 413 (Sth Cir. 1968).............. 14

Mechasky v. Bizzell, 414 F.2d 283 (Sth Cir. 1969) .............. 14

Missouri v. National Organization for Women, 620

Pe TI Be Fe iieieitataicatntictiniinssectninises 14, 20

NAACP v. Claiborne Hardware Co.,

I as EN EPID cictesdnarsipepactnitevincennmthactepiocusiats passim

Regents of the Univ. of Cal. v. Bakke,

Oe 12, 18

Page(s)

Regents of the Univ. of Mich. v. Ewing,

See ERITREA AES Slim 12, 14, 18

Sweezy v. New Hampshire, 354 U.S. 234 (1957) wove 12, 18

Thornhill v. Alabama, 310 U.S. 88 (1940) .escecscssssesssssm 14, 2°

Turner Broadcasting Sys., Inc. v. FCC,

ee EE SN SSRRE Aaah cat tec 20

United States v. Albertini, 472 U.S. 675 (1985) cscxesssssese 20

United States v. Carolene Products Co.,

a ee SERS TEND Nae ORR one 16

United States v. O’Brien, 391 U.S. 367 (1968) vss. passim

Statutes and Constitutional Provisions

EE COINS Dai esc isc 5

ae i ASH 1

I i elo 8

OUI RON iii a ai es 10

ONO BUNUN ished icoudiae scald &

Pub. L. No. 104-208, § 514, 110 Stat. 3009-271

NGS ANE A STE SE Ra te RP x

Pub. L. No. 106-65, § 549 (1999) ......ccsscsssssssssssssnsceseeeeesesen s

Pub. L. No. 108-375, § 552, 118 Stat. 1811 (2004) ........... 10

Ses SARs SEMINIIDS UF icsccrinssniscnnssisiddepinipseiistehoniinniiadinidinin passim

iv

Page(s)

Other Authorities

140 Cong. Rec. 11,439 (1994) (statement of

SN TINIE iss ssssscsitaaheninithnspnentontigehaineblindin honctiiastichivebiieee 8

140 Cong. Rec. 11,441 (1994) (statement of

RD, PORIIGS vec viotnscncratennienipspivinivhiicatinitiiavinincipnnamievidéis 8

140 Cong. Rec. 15,500 (1994) (statement of

Jae. NNEGEIOS) .2c1s0...cccrsecereseseanssesoneisoesossancansoneeecescnecetoesnesees 7

Jill Schachner Chanen, JAG Edge: Proposed

Changes for Military Lawyers Have Critics at

_ Attention, 89-Nov. A.B.A. J. 26 (2003).........-s0eeseeeeees

INTEREST OF AMICI

Amici comprise a majority of the faculty of the Yale

Law School (“Faculty Members”).' Twenty-seven years ago,

the Faculty collectively adopted a Nondiscrimination Policy,

which committed the Yale Law School to stand against

discrimination based upon sexual orientation. That policy

grew out of Faculty Members’ deep conviction that neither

the Law School’s educational mission nor their own

individual consciences would tolerate teachers assisting

deliberate discrimination against their own students.

For nearly three decades, the Faculty applied this

Nondiscrimination Policy to give access, but not active

assistance, to any employers who insisted upon

discriminating against Yale Law students in their hiring

practices based on sexual orientation. The Faculty Members

believed that the Yale Law Schoo! should not exclude any

speaker from speaking or prevent any point of view from

being aired within the School. Accordingly, the Faculty

willing job applicants who want to meet on the Law School

campus. But the Yale Law School does not aid and abet

gender, religion, or sexual orientation.

In 2002, the Department of Defense (“DOD”) invoked

the Solomon Amendment (codified at 10 U.S.C. § 983) and

threatened to cut off more than $300 million in Yale’s federal

funding if the Faculty Members did not change their long-

2

Members filed the case of Robert A. Burt et al. v. Donald H.

Rumsfeld in the United States District Court for the District

of Connecticut, challenging the legality of the Defense

Department’s interpretation of the Solomon Amendment.

Following extensive fact-finding, the Hon. Janet C. Hall:

(1) entered final judgment on behalf of the Faculty plaintiffs;

(2) declared the DOD’s threats to deprive Yale University of

some $300,000,000 in federal funding an unconstitutional

application of the Solomon Amendment in violation of the

Faculty Members’ rights under the First Amendment to the

United States Constitution; and (3) enjoined the DOD from

making any further financial threats against Yale University.”

Judge Hall’s judgment confirmed that the DOD had:

(2) unconstitutionally suppressed the Faculty Members’ right

to disassociate themselves from the DOD’s discriminatory

recruitment practices; and (3) failed to introduce any

evidence of harm to its recruiting efforts resulting from the

Faculty Members’ Nondiscrimination Policy.

In Rumsfeld v. Forum for Academic and Institutional

Rights (“FAIR”), the Government now denies that it has

invaded academic freedom or coerced faculty, and claims

that the Faculty Members’ efforts to protect their own gay,

undermined military recruitment efforts in a time of national

emergency. Amici submit this brief to show that these

claims are false.

First, the DOD’s actions have trampled upon the

Faculty Members’ academic freedom. The DOD’s effort to

conscript the Yale Law School faculty in its policy of open

and deliberate discrimination offends the fundamental values

of the Yale Law School, and any law school. The Faculty

? The decision of Judge Hall is reported at 354 F. Supp. 2d 156 (D.

Conn. 2005) and is reproduced at p. Al of the Appendix to the Faculty

Members’ Petition for Writ of Certiorari (“App.”) which is currently

pending before this Court. (No. 04-1434).

7

J

Members object not to the mere presence of military

recruiters, but to being forced to assist the military in telling

some Yale Law students that they are not fit to serve in our

country’s armed forces because of their sexual orientation.

The Faculty Members deeply respect those who serve in our

nation’s armed forces. They find both demeaning and

stigmatizing Petitioners’ insistence upon excluding Yale’s

gay, lesbian, and bisexual students from those forces. The

DOD’s demand that Faculty Members not just tolerate, but

actively aid and abet, their discriminatory recruitment

practices undermines the Faculty Members’ commitment to

maintain a tolerant and inclusive educational environment for

all Yale law students. For the Faculty now to surrender to

the Government’s coercion—even to protect the University’s

finances—would inevitably erode all students’ faith in the

Faculty Members’ commitment to treat them with equal

respect and dignity.

Second, by threatening Yale and other law schools with

bisexuals. But in NAACP v. Claiborne Hardware Co., 458

U.S. 886 (1982) and its progeny, this Court has repeatedly

affirmed that private associations have a First Amendment

Third and finally, the facts found by Judge Hall in the

Burt case prove that the DOD has, at all times, had ample

access to Yale Law School students for its legitimate

recruitment purposes. In Burt, the only Solomon

show that the Law School’s Nondiscrimination Policy of

and fully supports any employer who offers equal

opportunity. But when the Government tries to force law

5

extended the protection of that policy to gays, lesbians, and

bisexuals. Jd.

The Nondiscrimination Poli ides:

“Yale Law School reaffirms its policy against

discriminatory employment practices. The law

school does not countenance any form of

discrimination based upon age, color, handicap or

disability, ethnic or national origin, race, religion,

taking the form of sexual harassment), marital,

parental or veteran status, sexual orientation, or the

prejudice of clients. Accordingly, all employers

utilizing its placement services are required to

abide by this policy. Employers who violate this

policy will face sanctions.” (Petition for Writ of

Certiorari, Burt v. Rumsfeld, No. 04-1434 (“Burt

Pet.”) at 10).

The Nondiscrimination Policy governs all aspects of the Law

School’s activities, including appointments, admissions,

housing, scholarships—and recruitment. (App. Al5). The

Nondiscrimination Policy requires all employers seeking to

use the services of the Law School’s Career Development

Office (“CDO”) to sign a pledge affirming their adherence to

the Law School’s Nondiscrimination Policy. Jd.

It is the official policy of the DOD to discriminate

against gays, lesbians, and bisexuals. See 10 U.S.C.

§ 654(b\(1-3). DOD representatives have refused to sign the

pledge since 1978 and cannot use the services of the CDO.

(App. A20).

The Yale Law School faculty members guide their

students toward appropriate careers in the legal profession

and attempt to ensure that all of their students have access to

the broadest range of professional opportunities possible, free

from discrimination. The Faculty Members have delegated

the performance of some of their duties to the CDO. The

can interview Yale Law School students. The CDO

maintains information provided by employers for review by

6

students, provides a means for students to transmit resumes

to employers and schedules interviews, which are held at a

nearby private hotel to avoid disruption of the Law School’s

activities. (Burt Pet. at 9).

Because of their continuing discrimination against gays,

services of the CDO from 1978 to 2001. But pursuant to the

Law School’s policy of providing access but not assistance to

employers who refuse not to discriminate, throughout those

years military recruiters have been provided with access to

Under the arrangements between the Law School and the

DOD, the Law School provides military recruiters with

information concerning the students’ identity, addresses and

education, as well as contact information which enables

military recruiters to communicate with all students by mail,

phone and the internet. (App. A20-21). Using that

information, the DOD can communicate directly with Yale

law students by email, advertising their openings and

to schedule interviews with interested students at the private

hotel at the same time that other employers are interviewing

Yale law students. Jd. They are also free to initiate contact

with student organizations and meet with any interested

students at the organization’s invitation at any available

space on the Yale campus. Jd.

The DOD accepted these arrangements and conducted

interviews at the Law School without protest for over 20

years, from 1978 to 2001. Jd. In 2001, the DOD abruptly

discarded those earlier arrangements and insisted that the

Faculty Members exempt military recruiters from their

Nondiscrimination Policy. Id.

7

I. THE DOD HAS SUPPRESSED THE LAW

SCHOOL COMMUNITY’S NATIONWIDE PRO-

TEST OF THE MILITARY’S DISCRIMINATION

AGAINST GAYS, LESBIANS, AND BISEXUALS.

Yale’s policy led increasing numbers of American law

schools to adopt similar nondiscrimination policies

protecting gays, lesbians, and bisexuals. After these

practices became widespread, the American Association of

Law Schools adopted a resolution in 1990 requiring all of its

166 members to withhold “any form of placement assistance

or use of the school’s facilities” from employers who

discriminate against law students on the basis of race,

religion, ethnicity, gender or sexual orientation. (Brief on the

Merits submitted on behalf of the Department of Defense in

Rumsfeld v. FAIR, No. 04-1152 (“DOD Brief”) at 7.)

In response to the law schools’ growing protest against

the military’s continuing discrimination against gays,

lesbians, and bisexuals, Congress enacted the Solomon

Amendment in 1994. In its current form, the Solomon

Amendment empowers the DOD to withhold a broad range

of federal funding from “institutions of higher education” if

the “institution” or any “subelement of that institution” has a

“policy or practice ... that either prohibits, or in effect

prevents” military recruiters from gaining access to

campuses, to students on campuses, or to certain information

deemed necessary for recruiting. (App. E1-2).

The legislative history of the Solomon Amendment

makes it clear that the law was enacted in response to the

limitations placed on military recruiters by the nation’s law

schools. During passage of the Amendment in 1994, Senator

Nickles noted that “140 institutions of higher education . .

have denied military recruiters access to their campus(es]”.

140 Cong. Rec. 15,500 (1994) (statement of Sen. Nickles).

vw Ronnvred “140 institutions” pe Be ager ate ae Sager + Somer

8

Representative Pombo, a cosponsor of the Solomon

Amendment, stated the sponsors’ intention to “send a

message over the wall of the ivory tower”, and to tell

universities that “their starry eyed idealism comes with a

price”. 140 Cong. Rec. 11,441 (1994) (statement of Rep.

Pombo). Representative Solomon stated that Congress

intended to:

“tell ... recipients of federal money at colleges

and universities that if you do not like the Armed

Forces, if you do not like its policies, that is fine.

That is your first-amendment rights. But do not

expect Federal dollars to support your interference

with our military recruiters.” 140 Cong. Rec.

11,439 (1994) (statement of Rep. Solomon).

Despite the passage of the Solomon Amendment in

1994, the DOD continued for seven more years the modus

vivendi for recruiting which had been worked out with the

Yale Law School over the years since 1978. The DOD did,

however, successfully seek amendments to the Solomon

Amendment, expanding the scope of funds subject to the

Amendment in 1997 (Pub. L. No. 104-208, § 514, 110 Stat.

3009-271 (1996) (codified at 10 U.S.C. § 983(d)(1))), and

extending the defunding to the entire “institution of higher

learning” if “any subelement of such institution” (i.e., law

school) denied recruiting services to the DOD in 1999. Pub.

L. No. 106-65, § 549 (1999) (codified at 10 U.S.C. § 983(b)).

In adopting these amendments, Congress never considered

any empirical information showing that the law schools’

nondiscrimination policies were actually impeding the

DOD ’s recruitment efforts at the nation’s law schools.

In 2001, in an abrupt reversal of policy, the DOD began

insisting that Yale provide military recruiters not only with

the access necessary for recruitment, but also with the active

assistance given to other employers that adhered to the Law

law schools’ nondiscrimination policies because there was no other

significant relevant activity during that period at the nation’s universities.

9

School’s Nondiscrimination Policy. (Burt Pet. at 12). The

DOD insisted that military recruiters be afforded access in a

manner that is “at least equal in quality and scope” to that

offered to employers that subscribed to the

Nondiscrimination Policy. Jd. The DOD’s actions left no

doubt that it was threatening to withdraw $300 million of

federal funding in an effort to suppress the perceived

message sent by Yale’s policy.> As the DOD itself concedes,

the DOD’s threats against Yale were part of its nationwide

campaign to suppress the law schools’ application of

nondiscrimination policies to military recruiters. (DOD Brief

at 8).

The DOD succeeded. By 2003, virtually every law

school in the nation had been forced to exempt military

recruiters from their nondiscrimination policies. Jd. To

avoid depriving their colleagues of some $300,000,000 in

annual funding, a majority of the Yale Law School faculty

voted to suspend application of the Nondiscrimination Policy

to military recruiters until they could vindicate their

constitutional rights in court. (App. A22).

In 2003, the United States District Court for the District

of New Jersey suggested that the DOD’s insistence that

military recruiters be treated in a manner equal in quality and

scope to nondiscriminating employers exceeded the authority

conferred on the DOD by the Solomon Amendment. Forum

for Academic & Institutional Rights v. Rumsfeld, 291 F.

Supp. 2d 26¥, 321 (D.NJ. 2003). In order to increase

pressure on the nation’s law school community, the DOD

* After protracted correspondence, Acting Deputy Undersecretary

for Military Personnel Policy, William J. Carr, sent a letter, dated

May 29, 2003, to Yale University President Richard Levin that flatly

declared that “Yale’s policy is in violation of federal law’. (App. A23).

The Carr letter complained that the Faculty Members’ application of the

Nondiscrimination Policy to military recruiters “sends the message that

employment in the Armed Forces of the United States is less honorable or

desirable than employment [elsewhere].” Id. (emphasis added). The

letter made it clear that the DOD would deprive Yale University of

$300,000,000 in federal funding unless the Faculty Members stopped

applying the Nondiscrimination Policy to military recruiters. See id.

10

‘returned to Congress and secured legislation overturning

Judge Lifland’s decision (as the DOD concedes, DOD Brief

at 5-6; App. A20 n.16). Without holding hearings or issuing

any factual findings, the Congress amended the Solomon

Amendment by adding equality in quality and scope

language to the statute. Pub. L. No. 108-375, § 552, 118

Stat. 1811 (2004) (codified at 10 U.S.C. § 983(b)(1)).

As a result of the DOD’s coercive threats, the faculty of

the Yale Law School, under duress, allowed military

recruiters to use the services of the CDO from the fall of

2002 until the spring of 2005. (App. A22). Yet during that

time—in which it received both access and assistance from

Yale’s CDO—the DOD did not succeed in hiring a single

Yale law student contacted through the CDO. /d At the

same time, the Army General Counsel announced a proposal

to dramatically reduce his recruitment of military lawyers.

See supra note 3, (reporting U.S. Army General Counsel

Steven Morello’s announcement that “he planned to cut the

number of active-duty uniformed Judge Advocate General

Corps personnel to 500 from 1500”. )

_. The Faculty Members filed their action, Burt v.

Rumsfeld, in the United States District Court on October 16,

2003. On January 31, 2005, Judge Hall entered final

judgment declaring the DOD’s actions in applying the

Solomon Amendment to Yale University unconstitutional

and enjoining the DOD from making financial threats for the

purpose of coercing the Yale Law School faculty to abandon

application of their Nondiscrimination Policy to military

recruiters.

ARGUMENT

I. THE DOD HAS VIOLATED THE FACULTY

MEMBERS’ RIGHT TO ACADEMIC FREEDOM

The Faculty Members are dedicated to the teaching of

the law and the values central to the law. Among these

values is the principle that all persons are to be treated with

equal respect and dignity, irrespective of their race, ethnicity,

religion, gender or sexual orientation.

1]

The Faculty Members believe that a tolerant and

inclusive environment is essential for all students to achieve

their potential as members of the bar, bench and academy.

They believe that protecting their students from all forms of

discrimination occurring under law school auspices is

necessary to maintain this environment and to encourage all

students to participate fully and freely in the discussions

which form the core of their education, without exposure to

any discrimination which may inhibit or marginalize them.

The Faculty Members believe that protection against

discrimination must be extended to all activities occurring

under law school auspices—including recruitment. Since the

DOD openly and deliberately discriminates against gays,

lesbians, and bisexuals, the Faculty Members believe that the

DOD’s recruitment and hiring practices offend the core

values of the Yale Law School. The Faculty Members object

in the strongest possible terms to the DOD’s effort to

conscript the Faculty Members and the CDO, acting under

faculty supervision, to aid the military in implementing their

discriminetory practices under Law School auspices. The

Faculty Members object, not to the mere presence of military

recruiters, but to being forced to assist the military in acts

that tell some of their students that they are not fit to serve in

our country’s armed forces because of their sexual

orientation.

The Faculty Members support and respect all persons

who serve in the armed forces, but believe that the

opportunity to serve must be open to all persons irrespective

of race, ethnicity, religion, gender or sexual orientation. The

military’s exclusion of Yale’s gay, lesbian, and bisexual

students burdens these students with a demeaning and

stigmatizing judgment.

For the Faculty Members to assist or associate with the

military’s discrimination against their gay, lesbian or

bisexual students—particularly for financial reasons—will

inevitably erode the students’ trust in the Faculty Members’

commitment to treat them with equal respect and dignity. It

will necessarily damage the Faculty Members’ attempt to

create an inclusive and tolerant atmosphere in which students

12

can express their views freely and fully without fear of

marginalization, whether they are African-American, or

women, or Jewish, or Muslim, or gay, or lesbian, or bisexual.

This Court has consistently held that the First

Amendment rights of free speech and association endow

As the Court explained in Sweezy v. New Hampshire:

“The essentiality of freedom in the community of

American universities is almost self-evident. No

one should underestimate the vital role in a

democracy that is played by those who guide and

train our youth. To impose any strait jacket upon

the intellectual leaders in our colleges and

universities would imperil the future of our

nation.” 354 U.S. 234, 250 (1957).

The Supreme Court has consistently reaffirmed the principle

that academic freedom has long been viewed as “a special

concern of the First Amendment”. Regents of the Univ. of

Cal. v. Bakke, 438 U.S. 265, 312 (1978). Only two years

ago, this Court again reemphasized “our tradition of giving a

degree of deference to a umiversity’s academic decisions”.

Grutter v. Bollinger, 539 U.S. 306, 328 (2003). 7

This deference extends not only to what and how the

faculty teaches, but more broadly to the faculty’s freedom to

govern its university’s affairs. As the Court held in Regents

of the Univ. of Mich. v. Ewing:

“Academic freedom thrives not only on the

independent and uninhibited exchange of _—

among teachers and students, but also .

autonomous decision making by the Pea d

itself’. 474 U.S. 214, 226 n. 12 (1985) (citations

omitted).

See also Bd. of Regents of the Univ. of Wis. v. Southworth,

529 U.S. 217, 232 (2000) (upholding a mandatory fee

supporting extracurricular student activity and deferring to

the university’s judgment about what speech “is or is not

13

germane to the ideas to be pursued in an institution of higher

learning”).

The principle of academic freedom enshrined in the

First Amendment clearly protects the Nondiscrimination

Policy that the Yale Law School faculty members have

followed since 1978. The Faculty Members adopted that

policy to protect all of their students from any form of

discrimination, reasoning that such protection is necessary to

preserve a tolerant and inclusive academic environment. The

coercive intrusion of the DOD’s discriminatory practices into

the Law School community —: upon the Faculty

Members’ academic freedom.

Il. THE DOD HAS SUPPRESSED THE FACULTY

MEMBERS’ FREEDOM OF ASSOCIATION

The Faculty Members refuse to assist or to associate

with the DOD’s discrimination against their gay, lesbian, and

bisexual students in hopes that one day, all of their students

can pursue military service based on merit and free from

discrimination. In applying their Nondiscrimination Policy

to military recruiters, the Faculty Members are exercising a

constitutionally protected right to disassociate from and to

protest the milita-y’s discrimination.

This Court has long recognized that “freedom of

association plainly presupposes a freedom not to

associate”. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648

(2000) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623

(1984)). In Claiborne, this Court held that the freedom not to

associate provided constitutional protection for the actions of

the NAACP in organizing a boycott of merchants in Port

Gibson, Mississippi who discriminated against African-

Americans. The Court held:

“In sum, the boycott clearly involved

constitutionally protected activity. The established

elements of speech, assembly, association and

petition, though not identical, are inseparable... .

This Court has recognized that expression on

public issues has always rested on the highest rung

14

of the hierarchy of First Amendment values.” 458

US. at 911, 913 (quotation marks and citations

omitted).°

The Court’s decision in Claiborne makes it clear that

the First Amendment fully protects the Faculty Members’

refusal to cooperate with or assist, to disassociate from, and

thereby to protest against, the military’s discrimination

against their gay, lesbian, and bisexual students. Yet the

Government’s brief in FAJR nowhere mentions this Court’s

decision in Claiborne, which clearly holds that acts of

disassociation such as those before the Court are in and of

themselves acts protected by the First Amendment. Nor does

the DOD make any attempt to deal with this Court’s cases

extending First Amendment protections to academic freedom

and according deference to “autonomous decision making by

the academy”. Ewing, 474 U.S. at 226 n.12. Nor, finally,

does the DOD even mention that the cases before this Court

arise out of the DOD’s suppression of a nationwide protest

against the military’s continuing discrimination against gays,

lesbians, and bisexuals.

In short, the DOD ignores what this case is really about.

The Faculty Members’ actions in disassociating themselves

from the military’s discrimination form an integral part of the

nation’s law schools’ efforts to rid the legal profession of

base discrimination against gays, lesbians, and bisexuals.

That act of disassociation is part of a broader national effort

to ensure that gays, lesbians and bisexuals are treated with

- equal dignity and respect throughout our society.

* See Thornhill v. Alabama, 310 U.S. 88 (1940) (striking down as

unconstitutional an Alabama statute which prohibited picketing designed

to encourage workers to withhold their labor from an employer); Missouri

v. National Organization for Women (“NOW”), 620 F.2d 1301 (8th Cir.

1980) (voiding the application of state tort law to penalize NOW’s

boycott of Missouri related to the Equal Rights Amendment); see also

Henry v. First Nat'l Bank of Clarksdale, 595 F.2d 291 (Sth Cir. 1979);

Mechasky v. Bizzell, 414 F.2d 283 (Sth Cir. 1969); Kirkland v. Wallace,

403 F.2d 413 (Sth Cir. 1968).

disassociate themselves from the military’s discrimination is

itself an act protected by the First Amendment, most of the

DOD’s arguments become irrelevant. First, the fact that the

Faculty Members could express their cpposition to the

military’s discrimination against gays and lesbians by some

other means is irrelevant. In Claiborne, the NAACP could

equally have taken out an advertisement in the Port Gibson

newspaper deploring racial discrimination by local

merchants, but that fact in no sense suggests that the NAACP

lacked a protected right to boycott those merchants—and

whether those practices are attributed to them or not.

Similarly, the DOD seeks to brush aside this Court’s

presence of an unwanted member may result in an attribution

of that member’s views to the association. (DOD Brief at 18-

25). But as Claiborne makes clear, neither limitation applies

” The Faculty Members believe that the Dale case was wrongly

decided because it upheld the Boy Scouts’ ability to discriminate against

Mr. Dale based on his mere presence and sexual orientation, as opposed

to his conduct. The Faculty Members look forward to the day when the

law’s protections of our citizens’ rights to equal respect and dignity will

be accorded to gays, lesbians, and bisexuals as they have been to other

historically disfavored minorities. United States v. Carolene Products

Co., 304 U.S. 144, 152 2.4 (1938) (“prejudice against discrete and insular

minorities” “tends seriously to curtail the operation of those political

processes ordinarily to be relied upon to protect mimorities” and hence

Rottuten Gat efitet and eteaties “may call for a correspondingly

more searching judicial inquiry”). But if Dale and Hurley articulate the

Court's current views concerning the relationship between an instituton’s

freedom of association and its nght to disassociate from activities which

conflict with its values, those views must be as fully applicable to law

schools as they are to the Boy Scouts.

17

when a group exercises its right to disassociate itself from

another institution whose practices it finds offensive to the

association’s values. The merchants who were boycotted by

the NAACP and its supporters were obviously not members

of the NAACP. Nor did the NAACP’s right to boycott those

merchants rest on the potential attribution of the merchants’

racial views to the NAACP. See Claiborne, 458 U.S. 886.

In any event, Mr. Dale’s mere presence did not intrude

more deeply on the Boy Scouts’ core values than has the

DOD’s coercive conscription of Yale’s assistance in

discriminatory recruitment. As Justice Stevens pointed out in

Dale, no one claimed that Mr. Dale was proselytizing or

advertising his sexual orientation when serving as a Boy

Scout leader. 530 U.S. at 689-91 (Stevens, J., dissenting).

Nevertheless, Mr. Dale’s mere presence was deemed

sufficient to trigger the Boy Scout’s right to exclude him. By

contrast, in the Burt case, the Faculty Members are

attempting to prevent the actual commission under Law

School auspices of discriminatory acts that demean their gay,

lesbian, and bisexual students—acts explicitly condemned by

the Yale Law School’s Nondiscrimination Policy. Coercing

the Faculty Members’ cooperation in such discriminatory

conduct damages the Yale Law School’s values far more

than Mr. Dale’s mere presence damaged the Boy Scouts.

In Dale, this Court said: “[a}]s we give deference to an

association’s assertions regarding the nature of its expression,

we must also give deference to an association’s view of what

would impair its expression”. 530 U.S. at 653. This Court

should similarly defer to Yale’s Nondiscrimination Policy,

which leaves no room for doubt as the Faculty Members’

views:

“Yale Law School reaffirms its policy against

discriminatory employment practices. The Law

School does not countenance any form of

discrimination ... ”. (Burt Pet. at 10).

acsdistitedls tic @hstinen ek dativasaecdaiian

of a law faculty’s right to disassociate from discriminators

18

than it has applied to those who choose to discriminate

against gay, lesbian, and bisexual persons.

Finally, this Court’s decisions in Sweezy, Bakke, Ewing

and Grutter, supra, all recognize that academic freedom is a

matter of special concern of the First Amendment and that

deference should be accorded to the autonomous decision-

making by the academy. These decisions clearly mandate

judicial deference to the Faculty Members’ judgment that

they must disassociate themselves from the military’s

discriminatory recruitment practices to protect the core

values of the Yale Law School.

Ii. THE DOD FAILED TO INTRODUCE ANY

EVIDENCE THAT ITS RECENT COERCIVE

CONDUCT IS NECESSARY TO ACHIEVE ANY.

GOVERNMENTAL PURPOSE.

Burt v. Rumsfeld, Judge Hall found that the DOD had

failed to introduce any evidence that its recent coercive

conscription of CDO services was necessary to achieve any

governmental purposes. She held:

“Here, DOD has offered no proof that the

Solomon Amendment is the least restrictive means

by which the Congress can successfully raise and

maintain an effective military.... Despite the

fact that any information on military recruiting

successes and failures is uniquely within the

control of the military, DOD has offered no

evidence that either (1) the number of recruits it

obtained prior to the suspension [of the Yale Law

School’s Nondiscrimination Policy (“NDP”)] was

insufficient, or (2) that implementation of the

Solomon Amendment, im the form of the

suspension of the NDP, has increased, or is even

likely to increase the number of those recruits. In

fact, the only reference made to any success or

failure of recruiting in this litigation is the

military’s admission that in the more than two

years the NDP has been suspended, it has obtained

19

to the military via the CDO program.” (App. A44,

A46).

The DOD introduced no evidence in either the Burt case

or the FAIR case that its recent coercive conduct has

furthered any legitimate interest in recruiting lawyers. For

more than twenty years—including seven years after the

Solomon Amendment was passed—the DOD recruited law

students at the Yale Law School and law schools throughout

the country under arrangements which permitted access and

information sufficient for legitimate recruiting needs. (App.

A15-24). During that time, the DOD did not coerce law

schools to abandon the evenhanded application of their

nondiscrimination policies to all employers. At no time

during the enactment or subsequent modification of the

Amendment were any findings made by Congress that could

establish that the DOD’s suppression of the law schools’

protest against military discrimination was either (1)

necessary to attain a compelling government interest (as

required by Dale, 530 U.S. at 659); or (2) the minimum

meget nade npememeys Meigen: Ty ag yee

interest (as required by United States v.

O Brien, 391 U.S. 367, 377 (1968)).

In the cases now before this Court, the DOD introduced

no evidence that its recruiting of lawyers was either

inadequate before its recent coercive conduct, or improved

because of it. To the contrary, as Judge Hall found, the only

evidence in the Burt case proved that the DOD’s coercion

resulted in no benefit to the Government’s recruiting efforts.

(App. A45-46).

The DOD’s failure of proof means that its recent

coercive conduct cannot be justified, whether one applies the

strict scrutiny test applied by Dale—that the conduct

constitutes the least restrictive means of achieving a

compelling government interest—or the test applied by

O'Brien—that the restriction of First Amendment freedoms

be “no greater than essential to the furtherance of the

governmental interest”. 391 U.S. at 377.

20

Judge Hall correctly decided that the DOD’s conduct in

these cases is subject to strict scrutiny. (App. A41-46, A5S4-

55). The DOD offers no principled distinction between ‘hese

cases and Dale, in which this Court held that “the

intermediate standard of review set forth United States v

O'Brien ... is inapplicable”. 530 U.S. at 659. The DOD’s

actions in forcing the Faculty Members to exempt the

military from its Nondiscrimination Policy affects their

associational rights in a manner at least as direct and

mop rainy tinge cays Dale’s mere presence in the

activity protected by the First Amendment. See, ¢.g.,

Claiborne, 458 U.S. 886; Thornhill, 310 U.S. 88; Missouri v.

NOW, 620 F.2d 1301.

In its Brief, the DOD relies on three arguments to

justify its recent coercion. First, relying solely on Justice

O’Connor’s opinion in United States v. Albertini, 472 U.S.

675 (1985) (a case involving access to military bases), the

DOD asserts that all it need prove is that recruiting was more

effectively achieved by its conscription of law school

recruiting services than by the less intrusive methods

previously followed. (DOD Brief at 35-36). But as Justice

pursue them”. Turner Broadcasting Sys., Inc. v. FCC, 520

U.S. 180, 253 (1997) (O'Connor, J., dissenting) (quoting

Albertini, 472 U.S. at 689).

i

campuses”. (DOD Brief at Aor Aonder sao ean Ds

11,438 (1994)). But on its face, this statement refers to the

recruiting of high school graduates and college students, not

furtherance of the [DOD’s] interest”. O’Brien, 391 U.S. at

ee ne ee Rg? (DOD Brief at

1978 to 2001, the Yale Law School and DOD followed a

modus vivendi whereby DOD successfully recruited Yale

students by having access, but not active assistance, from the

Law School’s Career Development Office. The DOD has

made no factual showing why this modus vivendi did not

serve, or could not be made to serve, all of the DOD’s

legitimate recruiting aims.

In sum, the DOD’s recent suppression of the law

gay, lesbian, and bisexual students is far more restrictive than

prosecution suggests that the DOD is not obligated to ensure that actions

impinging on First Amendment values be no greater than essential to

furtherance of the governmental interest.

22

under the test in O’Brien or under the more searching

standard of Dale, the DOD has utterly failed to show that it

has taken all available steps to minimize its intrusion into

Faculty Members’ constitutional rights.

CONCLUSION

Neither the Solomon Amendment nor the First

Amendment authorizes our military to invade academic

freedom, to force law schools to associate with the military’s

discriminatory practices, or to use coercive tactics that are

unnecessary for effective military recruiting. For the

foregoing reasons, the judgment of the United States Court of

Appeals for the Third Circuit in FAIR v. Rumsfeld should be

affirmed.

September 21, 2005

Respectfully submitted,

PAUL M. DODYK

825 Eighth Avenu«

New York, NY 10019-7475

Telephone: (212) 474-1000

Counsel of Record

DAVID N. ROSEN DANIEL SLIFKIN

400 Orange Street ALMA HADAR

New Haven, CT 06511 CRAVATH, SWAINE & MOORE LLP

Telephone: (203) 787-3513 825 Eighth Avenue

New York, NY 10019-7475

Telephone: (212) 474-1000

Counsel for Amici Curiae

Appendix A

List of Amici

Amici, each of whom is a member of the faculty of the Yale

Law School, are as follows:

Robert A. Burt

Owen M. Fiss

Harold Hongju Koh

Kenji Yoshino

Bruce Ackerman

Anne L. Alstott

Ian Ayres

Jack M. Balkin

Yochai Benkler

Richard R.W. Brooks

Amy L. Chua

Morris L. Cohen

Dennis E. Curtis

Harlon L. Dalton

Drew S. Days III

Brett Dignam

Steven B. Duke

William N. Eskridge, Jr.

Daniel C. Esty

Daniel J. Freed

Robert W. Gordon

Michael J. Graetz

Oona A. Hathaway

Dan M. Kahan

Paul W. Kahn

Jay Katz

S. Blair Kaufman

Alvin K. Klevorick

Anthony T. Kronman

Carroll L. Lucht

Daniel Markovits

Jerry L. Mashaw

Jean Koh Peters

Robert C. Post

J.L. Pottenger, Jr.

Judith Resnik

Carol M. Rose

fusan Rose-Ackerman

Vicki Schultz

Reva Siegel

John G. Simon

Robert A. Solomon

Stanton Wheeler

Stephen Wizner

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