October 12, 2007
Post-Fair II: Second Circuit Denies Yale's Academic Freedom Claim
On Sept. 17, 2007, the Second Circuit issued a post-Fair II opinion dealing with stayed first amendment claims relating to academic freedom and freedom of association. Yale professors claimed that it violates their first amendment rights to academic freedom and association to force the school (with the threat of federal funding withdrawal) to allow military recruitment on campus despite the school's non-discrimination policy. Burt v. Gates, 2007 WL 2694439 (2d Cir. Sept. 17, 2007).
Obviously, the second issue, freedom of (dis)association, was clearly answered in the Fair II case. However, the Supreme Court did not directly address the "academic freedom" claim. Id. at *5. The Second Circuit notes that the Supreme Court was obviously aware of the claim, though, and would have rejected this argument. Id. at *5, 7 (noting that the Fair II court plainly rejected the argument that the Solomon Amendment requires the petitioners to associate with the military--thus, they may also freely "disassociate themselves from the recruiters by words and deeds.").
Thus, the Second Circuit addressed the claim of Yale professors (including the Dean of Yale Law School) that forcing the school to permit military recruitment on campus hinders academic freedom by stifling their "commitment to equal justice among their students, ensuring a diverse student body, and helping students frind appropriate careeers[.]" Id. at *5. The Second Circuit rejected this claim because "[t]he relationship between barring military recruiters and the free flow of ideas is . . . attenuated." Id. at *6. The court notes that nothing in "The Solomon Amendment [restricts] the content of teaching, the membership of teachers in organizations, the selection of students, or evaluation and retention of students." Id.
First, yes, the Supreme Court would probably reject this claim. Id. at *2 (noting that the Fair II decision was unanimous). Especially due to the plain language of the Fair II case. Forum for Academic & Inst. Rights v. Rumsfeld, 544 U.S. 1017, 1307 (2005) (noting that the Solomon Amendment regulates "conduct, not speech" and "affects what law schools must do-afford equal access to military recruiters-not what they may or may not say."). However, I still think it is worthwhile to think these claims through, as the right to academic freedom is central to the purpose of any educational institution.
Although the Solomon Amendment does not restrict the content of teaching (professors may express their opinions without restraint), it certainly restricts the ability of the professors to promote an environment conducive to learning, which, after all, is the most important function of an institution of higher learning. One of the keys to effective teaching on any college campus is the inclusion of diverse viewpoints. See Grutter v. Bollinger, 539 U.S. 306, 328-29 (2003). By permitting the military to recruit on campus with a restrictive "don't ask, don't tell" policy, the school (along with its professors) contradicts its own message. Academics cannot express their commitment to diversity fully with the presence of discriminatory military recruiters. Thus, when individual professors discuss their commitment to an open and respectful classroom environment, students (particularly LGBT students) may feel that this message is insincere or untruthful due to the contradictory message conveyed by the presence of miliary recruiters on campus. The presence of military recruiters on campus hinders the message of those professors and academics who seek to create an atmosphere of inclusion inside their classrooms and on campus in general.
Attenuated? A bit. But, must a school-wide policy literally bind the mouths of the professors in order for them to present a valid academic freedom claim? Or, can one demonstrate an academic freedom claim when the government undermines one of the key messages the professors intend to convey in the classroom? Also, what is the point in seeking to recruit a diverse student body if one cannot then promote an environment conducive to the expression of multiple viewpoints? In other words, unless the diverse student body feels comfortable, the students will not participate in classroom discussions and debates--defeating the "compelling interest" of diversity on campus.
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