U.S. Judge: No Yale Law Clerks
Friday February 25, 3:00 am ET
Dee McAree, The National Law Journal

A federal judge in Alabama has announced that he will not consider Yale Law School students for federal clerkships because of the school's decision to deny military recruiters equal access to its campus.

The school and the U.S. Department of Defense have been embroiled in a legal fight over the issue, with the school this month announcing that it would return to its nondiscriminatory recruiting policy that will, in effect, limit access to military recruiters who deny enlistment to homosexuals.

Not everyone was happy about the school's position.

In a recent letter to his alma mater, Senior Judge William M. Acker of the Northern District of Alabama in Birmingham told the school's dean that no Yale law students need apply for clerkships " ... unless and until YLS [Yale Law School] changes its mind or the Solomon Amendment is found by the Second Circuit or by the Supreme Court to be constitutional and enforceable against YLS," the judge wrote.

Acker declined to discuss his decision beyond the public statement in his letter and copies of e-mails that he had received from supporters. But lots of other people were talking about the judge's letter through e-mails and Web logs with mixed reactions.

Supporters chimed in on the Web log The Volokh Conspiracy, operated by Professor Eugene Volokh, who teaches First Amendment law at the University of California at Los Angeles School of Law. Volokh said that while he supports the judge's right to protest the school's policy, he doesn't think the judge should take it out on law students.

"Collective punishment can sometimes be an effective method of sending a message to an institution, but it's not quite fair to penalize the student for the law school he went to," Volokh said. "Judges ought to try to be extra fair to everyone."

Supporters and detractors alike agreed that the judge has a legal right to choose his clerk by whatever method he chooses.

Yale Law School Dean Harold Hongju Koh was not available for comment. Jan Conroy, director of public affairs for Yale, said that Acker's was the only such letter the school had received.

Senior public affairs officer Richard Carelli of the Administrative Office of the U.S. Courts said he was not aware of other federal judges taking a similar stand. Carelli added that the issue is not scheduled for discussion at next month's judicial conference.


Yale's Conroy pointed out that Yale students are still being recruited by the military. The school has not banned military recruiters, but does not provide them the affirmative assistance it extends to nondiscriminatory employers, she said.

The school returned to its policy of limited access after being awarded summary judgment by a federal court judge on Feb. 1.

A group of Yale faculty and students had sued the government over its use of the Solomon Amendment to deny federal funds to schools that refuse to facilitate military recruiters.

District Judge Janet Hall approved the school's position, saying the Solomon Amendment had been unconstitutionally applied and no compelling government interest had been shown to deny Yale its First Amendment right to freedom of association. Burt v. Rumsfeld, No. 30CV1777 (D. Conn.).

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