Editorial: Yale vs. the Military…Again

Yale Law School has once again placed leftist politics above national security. This time, Hillary Clinton’s alma mater has sued Secretary of Defense Donald Rumsfeld to bar military recruiters from campus. Yale’s decree of non-discrimination against gays and lesbians conflicts with Bill Clinton’s bankrupt “don’t ask, don’t tell” policy, and Yale would dearly love to ban all military recruiters from campus. However, thanks to the Solomon Amendment – which threatens to revoke government funds from campuses that don’t fully cooperate with military recruiters – Yale could stand to lose $300 million as a result.

The university backed down once before, explicitly to continue receiving government handouts. Now, Yale has joined with other law schools around the country and taken the Solomon Amendment to court.

Their case’s shaky premise is as follows: The Solomon Amendment demands full cooperation with military recruiters, who bar open homosexuals from service. This prevents the universities in question from implementing their non-discrimination policies. Thus, the Solomon Amendment violates these school’s First Amendment rights.

Law professor Robert Burt and 43 of his colleagues in Yale Law School support the case; that is, fully two-thirds of the Law School’s voting members are on board.

Burt recently told a reporter, “What the military is trying to do by demanding that we actively assist them in their recruiting efforts here is draft us in their war against gays and lesbians.” Perhaps Burt should review the policies of Osama bin Laden and Kim Jong-il vis-à-vis homosexuality.

The problems with these law schools’ constitutional arguments should be obvious:

  1. The Solomon Amendment requires a school’s compliance with military recruiters in exchange for massive government funding. As the New Deal Supreme Court Justice Robert H. Jackson noted in 1943, “It is hardly lack of due process for the government to regulate that which it subsidizes” (Wickard v. Filburn).
  2. The presence of military recruiters hardly keeps the Yale “community” from voicing its views on the issue of homosexuality. When JAG recruiters set foot on campus earlier this month, they were treated like lepers. Where’s the chilling effect here?

This is indeed a slender reed on which to hang a case. At a time when an average of one serviceman a day is dying in Iraq, America’s Ivy League schools have opted to place ideology over their country’s well-being. Their lawsuit touches on no Constitutional prerogative. Yale simply wants the government to subsidize the censorship and suppression of its own Armed Forces.  The U.S. taxpayer should not have to underwrite the faculty’s left-wing advocacy.

If Yale & co. feel so strongly about their convictions, let them take the heat: let them forego all government funding. Sure, their stance would come at a steep price, but it would also send a powerful and articulate message about their commitment to “inclusion.” Painless devotion is the stuff of “the sunshine soldier and the fair-weather patriot”; only suffering begets martyrdom and bestows its attendant moral authority, a quality Yale, for all its protests, lacks. Martin Luther King Jr. famously commemorated his stay in the Birmingham jail; let Yale, et. al., try to capture the national attention with a season of job attrition and tuition hikes. At very least, that path would give the Law School faculty a better perspective on how to choose their battles.

And unless they can argue their case before the Ninth Circuit Court of Appeals, this path of self-imposed martyrdom will probably be the only way they can continue their intransigence toward the men and women who protect their legitimate First Amendment rights.

This article originally appeared as the lead on Monday, November 3, 2003, on FrontPage Magazine.