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No. 04-1152

In the Supreme Court of the United States

DONALD H. RUMSFELD, ET AL., PETITIONERS

v.

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS,
ET AL., RESPONDENTS

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

JOINT APPENDIX

PAUL D. CLEMENT
Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

Counsel of Record
for Petitioners

E. JOSHUA ROSENKRANZ
Heller Ehrman LLP
Times Square Tower
7 Times Square
New York, New York 10036-6524
(505) 842-9960

Counsel of Record
for Respondents

PETITION FOR A WRIT OF CERTIORARI FILED: FEB. 28, 2005
CERTIORARI GRANTED: MAY 2, 2005

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

No. 03 Civ. 4433 (JCL)

FORUM FOR ACADEMIC AND INSTITUTIONAL
RIGHTS, A NEW JERSEY MEMBERSHIP CORPORATION, SOCIETY OF AMERICAN LAW TEACHERS, INC. A NEW YORK CORPORATION, COALITION FOR EQUALITY, A MASSACHUSETTS ASSOCIATION, RUTGERS GAY AND LESBIAN CAUCUS, A NEW JERSEY ASSOCIATION, PAM NICKISHER, A NEW JERSEY RESIDENT, LESLIE FISCHER, A PENNSYLVANIA RESIDENT, MICHAEL BLAUSCHILD, A NEW JERSEY RESIDENT, ERWIN CHEMERINSKY, A CALIFORNIA RESIDENT, AND SYLVIA LAW, A NEW YORK RESIDENT, PLAINTIFFS

v.

DONALD H. RUMSFELD, IN HIS CAPACITY AS U.S. SECRETARY OF DEFENSE; ROD PAIGE, IN HIS CAPACITY AS U.S. SECRETARY OF EDUCATION; ELAINE CHAO, IN HER CAPACITY AS U.S. SECRETARY OF LABOR; TOMMY THOMPSON, IN HIS CAPACITY AS U.S. SECRETARY OF HEALTH AND HUMAN SERVICES; NORMAN MINETA, IN HIS CAPACITY AS U.S. SECRETARY OF TRANSPORTATION; AND TOM RIDGE , IN HIS CAPACITY AS U.S. SECRETARY OF HOMELAND SECURITY, DEFENDANTS

[Filed: Oct. 15, 2003]

SECOND AMENDED COMPLAINT

PRELIMINARY STATEMENT

1. This case is about the freedom of educational institutions, specifically law schools, to shape their own pedagogical environments and to teach, by word and deed, the values they choose, free from government intrusion. It is about whether the government may compel law schools to lend their resources, personnel, and facilities to propagate a message they abhor-a message of discrimination that violates the core values they inculcate in their students and faculty. The names and addresses of the parties to this lawsuit are: Plaintiff Forum for Academic and Institutional Rights, Inc. ("FAIR") is a membership corporation organized under the laws of the State of New Jersey and its address is Dwyer & Dunnigan, L.L.C. c/o Andrew Dwyer, 17 Academy Street, Suite 1010, Newark, NJ 07102. Plaintiff The Society of American Law Teachers, Inc. ("SALT') is a corporation whose members are law faculty and its address is Society of American Law Teachers, Inc. c/o Paula C. Johnson, Syracuse University College of Law, E.1. White Hall, Syracuse, NY 13244. Plaintiff The Coalition for Equality is an association whose address is The Coalition for Equality clo Gerald Mays and Sara Smolik, Boston College Law School, 885 Centre Street, Newton, MA 02459. Plaintiff Rutgers Gay and Lesbian Caucus is an association whose address is Center for Law and Justice, 123 Washington Street, Newark, NJ 07102. Plaintiff Pam Nickisher is an individual whose address is 63 Marrow Street, Newark, NJ 070103. Plaintiff Leslie Fischer, Ph.D. is an individual whose address is 63 Marrow Street, Newark, NJ 07013. Michael Blauschild is an individual whose address is 101 Bleeker Street, No. 64, Newark, NJ 07102. Plaintiff Erwin Chemerinsky is an individual whose address is 329 N. Fuller St., Los Angeles, CA 90036. Plaintiff Sylvia Law is an individual whose address is 3 Washington Sq. Village, New York, NY 10012. Defendant Donald Rumsfeld is the Secretary of Defense whose address is 1000 Defense Pentagon, Washington, D.C. 20301-1000. Defendant Rod Paige is the Secretary of Education whose address is United States Department of Education, 200 Constitution Ave., N.W., Washington, DC 20202. Defendant Elaine Chao is the Secretary of Labor whose address is United States Department of Labor, 200 Constitution Ave., N.W., Washington DC 20210. Defendant Tommy Thompson is the United States Secretary of Health and Human Services whose address is United States Department of Health and Human Services, 200 Independence Ave., S.W., Washington, DC 20201. Norman Mineta is the Secretary of Transportation whose address is United States Department of Transportation, 400 7th Street, S.W., Washington, DC 20590. Tom Ridge is the Secretary of Homeland Security whose address is Department of Homeland Security, Washington, DC 20528.

2. For over a decade, nearly every accredited law school has maintained policies against offering its resources, support, or endorsement to any employer that discriminates. These non-discrimination policies apply whether the employer discriminates on the basis of race, national origin, gender, veteran status or any number of other attributes that, in the law schools' judgment, bear no relation to merit-including sexual orientation. In following this policy, law schools do not simply make a statement that invidious discrimination is a moral wrong and impart that view to their students; they also commit themselves to behave in a manner consistent with their core value of judging people solely on their merits.

3. When law schools' non-discrimination policies came into conflict with the military's policies on sexual orientation-an employment policy that is, in the estimation of law faculties nationwide, invidiously discriminatory-law schools exercised their expressive and associational rights to enforce their non-discrimination policies even-handedly against military recruiters as they did against any other employer.

4. Congress responded in 1994 by enacting the so-called Solomon Amendment, which requires every institution of higher education to give military recruiters access to campus on pain of losing federal money. The purpose, the sponsors made clear, was to "send a message over the wall of the ivory tower" to "treat our Nation's military with the respect it deserves." 140 Cong. Rec. 11,441 (1994). Both the statute and its execution have become increasingly strict in the intervening years. In its current iteration, as interpreted by the military, the Solomon Amendment co-opts the career services staff, message centers, vehicles of communication, and on-campus interview rooms of a law school, by threatening to cut off virtually all federal funds not just to the law school, but to the entire university of which it is a part-unless the law school suspends its non-discrimination as applied to the military. As of the fall of 2003, for the first time, virtually all law schools in the nation have been forced to accept and support military recruiters on campus, under protest, in violation of the law schools' non-discrimination policies. This is the culmination of an effort that was launched by the Department of Defense ("DOD") in December 2001 and that has been fought and negotiated by law schools around the country for the last year and a half. Over the summer of 2003, it became clear that virtually every law school in the country had been forced to violate its non-discrimination policy under the threat of the Solomon Amendment.

5. Plaintiffs turn to this Court to vindicate the right of law schools and law professors to choose for themselves, free from government interference, how best to advance their educational missions; what messages to articulate to their communities; and how to communicate those messages. Only this Court can restore the open environment of equality, mutual respect, and dignity that law professors and law students have grown to cherish and expect.

JURISDICTION AND VENUE

6. Subject matter jurisdiction is conferred upon the Court by 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (e).

THE PARTIES

Plaintiffs

Associational Plaintiffs

7. Plaintiff Forum for Academic and Institutional Rights, Inc. ("FAIR") is a membership corporation organized under the laws of the State of New Jersey. FAIR brings this lawsuit on behalf of its members. About half the members of FAIR are law schools. The other half are law school faculties that have voted as a body-by at least majority vote-to join FAIR. The law school faculties that are members of FAIR are the bodies that collectively, and autonomously, make law school policy, including the decision whether and how to implement non-discrimination policies.

a. FAIR's mission is to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education. FAIR members recognize and agree that their non-discrimination policies are central to their missions, for those policies contribute to a setting in which all participants in the dialogue are assured that they will be judged on the quality of their ideas rather than characteristics bearing no relation to merit.

b. Every member of FAIR was promised anonymity as a condition of joining FAIR. This anonymity is critical to the functioning of FAIR. FAIR's members are deeply concerned about being identified publicly, for they fear retribution by government officials and public vilification. Most of FAIR's members fear retribution not just against themselves but against their affiliate institutions within their university communities that rely heavily on government grants and congressional appropriations. They fear specifically that Members of Congress will cancel appropriations to their sister institutions behind closed doors and that Government bureaucrats will reject contracts or grants or will decline to renew them-all without any explanation, but as punishment for what they view as an affront to the military. They also fear that they and their sister institutions will be singled out for virulent and unfair attacks by politicians and in the press, attacks that have already materialized in such mainstream media outlets as the Wall Street Journal, The Legal Times, and Fox News. Such attacks, unfairly mischaracterizing the lawsuit and the interests of FAIR's members in the lawsuit, expose FAIR's members and their sister institutions to the loss of students, the anger of alumni, and the loss of donations.

c. If FA1R were forced to disclose its membership list publicly, the disclosure would defeat the very organizational purpose that FAIR was created to advance, the highly unpopular advocacy of a dissenting view of a Government policy. In fact, some would-be members of FAIR have declined to join precisely because they have been alerted to Government efforts to learn the identities of FAIR's members and they fear the exposure.

d. There are two exceptions among the membership: Golden Gate University School of Law (Golden Gate Law) and the Faculty of Whittier Law School (Whittier Law). Golden Gate Law is a member of FAIR. Golden Gate Law has a non-discrimination policy that denies the use of its career service office and facilities to discriminatory employers. Golden Gate Law applied this policy to the military as it applied the policy to all employers. In December 2001, Golden Gate Law was one of the two dozen law schools specifically targeted by DOD with a letter raising questions about whether Golden Gate Law was in compliance with the Solomon Amendment, and threatening a complete cutoff of federal funds if Golden Gate Law were found out of compliance. Subsequently, DOD, contrary to clear statutory language, threatened Golden Gate University with the loss of all federal funds, including student financial aid. Because of the threat, and for no other reason, in June 2003, Golden Gate Law suspended its policy with respect to the military, and now admits the military against its will onto its campus to participate in its recruiting job fair. Golden Gate Law believes that the assistance it provides to the military undermines the message it is trying to inculcate in its students and interferes with the academic environment it has chosen to establish for the benefit of its students and faculty.

e. Whittier Law is a member of FAIR. The Whittier Law faculty voted overwhelmingly in 1989 to endorse a student-sponsored petition to ban military recruiters from on-campus recruitment, because the military did not abide by Whittier Law's statement of nondiscrimination as interpreted by the Whittier Law faculty and the law school's administration. The Whittier Law faculty extended its nondiscrimination policy to all forms of discrimination, including age, disability and sexual orientation. Following the vote, the director of career services promptly disinvited the military JAG representatives and removed all related recruiting materials from the career offices library shelves per this faculty direction. From the fall semester 1989 until the fall semester 2002, Whittier Law adopted the broadest interpretation of its policy to provide law school facilities only to those employers whose practices are consistent with Whittier Law's policy of non-discrimination. Military recruiters were not permitted to post recruiting information, speak at school-sponsored events, sit at tables, access student/ alumni addresses, leave material visible in any library area, or interview on campus. If a student expressed interest in a military JAG career, the director of career services would refer the student to a recruiting office.

f. In 1999, when the Solomon Amendment placed Whittier student financial aid at risk, the Whittier Law faculty did not acquiesce, maintaining its resolution and the complete ban on military recruiting. In 2001, Whittier Law was one of the two dozen law schools specifically targeted by DOD with a letter raising questions about whether Whittier Law was in compliance with the Solomon Amendment, and threatening a complete cutoff of federal funds if Whittier Law were found out of compliance. Whittier Law proposed several compromise plans to on-campus recruiting, including interview access at Whittier College itself.

g. Finally, on June 2002, because of the DOD's threat, counsel to Whittier College notified the military of the Law School's intent to accede to the military's demand for access for recruiting purposes. During the 2002-03 academic year, one May 2003 graduate was accepted to the Air Force JAG. This single offer, the first made since the on-campus interview ban was suspended, does not represent a statistically significant increase in hiring from the Whittier Law School student body. Whittier Law believes that the assistance it provides to the military undermines the message it is trying to inculcate in its students and interferes with the academic environment it has chosen to establish for the benefit of its students and faculty. At least one Whittier Law student believes that if the Law School is to comply with the Solomon Amendment, it should modify the non-discrimination policy to read that the law school should not assist any employer who discriminates "except those deemed worthy of discrimination by the federal government."

h. Every member of FAIR has autonomy to develop policies directed at enhancing its academic atmosphere and safeguarding its ability to recruit and retain diverse students. Every member of FAIR exercised that autonomy to adopt a policy that prohibits discrimination on the basis of, among other categories, sexual orientation. Every member of FAIR requires those employers who seek to use the law schools' career placement offices, facilities and resources to abide by these non-discrimination policies. Every member of FAIR applies these non- discrimination policies to all employers, and has declined to make an exception for military recruiters. As a direct result of the Solomon Amendment, or the DOD's interpretation and application of the Solomon Amendment. every FAIR member has entirely suspended the application of its non-discrimination policy to military recruiters, including any symbolic gestures to signal its adherence to non-discrimination. Every member of FAIR believes that the suspension of its non-discrimination policy has compromised the message of non-discrimination that FAIR members previously sent to their communities and has undermined its efforts to provide its students and faculty with an atmosphere conducive to the free exchange of ideas.

i. Every member of FAIR joined the association pursuant to its customary protocols and policies, with whatever approvals and consultations the dean deemed organizationally necessary.

j. At least two members of FAIR had, for a period of time, barred military recruiters entirely from their campuses, voluntarily foregoing federal funds to the law schools themselves. Both were the targets of threats by the military not just to allow access, but to assist the military in the same ways that they assisted employers who did not discriminate. Both have complied, but only in response to direct threats from the military. One complied because the military threatened to cut off hundreds of millions of dollars in federal funding to the rest of the university. The other complied out of fear of being publicly vilified upon being listed in the Federal Register as non-compliant.

k. Every member of FAIR that did not bar military recruiters from campus found other methods of adhering to its non-discrimination policy as an expression of its stance against discrimination and in vindication of its right not to abet acts of discrimination, even while offering the military full access to its students. Several allowed military recruiters to recruit on campus, but refused to make appointments for them. Some allowed military recruiters to use university space--because their universities had less strict stances on non-discrimination-but not law school space. Most refused to let military recruiters participate in the formal job fairs sponsored by their schools. Each of these FAIR members has abandoned entirely these symbolic stances against discrimination in the face of the Solomon Amendment.

l. At least two of the FAIR members described in Paragraph 7(f), abandoned the practices described only after the military directly threatened them with a university-wide cutoff of all federal funds. Those who abandoned these practices without a direct threat from the military did so because they were aware of the threats directed at others. Every member of FAIR has come to believe over time that the military's position is that it must be treated exactly the same as any employer who does not discriminate, though the military never directly communicated this principle to most of FAIR's members.

m. Among the FAIR members (described in Paragraph 7(e)-(g)) who received direct threats by military personnel, not a single one was given clear directions as to exactly what the Solomon Amendment requires. None was given any formal process by which to challenge the views of DOD officials that it was out of compliance.

8. Plaintiff The Society of American Law Teachers, Inc. ("SALT") is a New York corporation with almost 900 members. It is the largest membership organization of law faculty in the United States. Its members hail from 159 law schools in 44 states, including New Jersey, the District of Columbia, Puerto Rico and four foreign nations. It is committed to making the legal profession more inclusive and to extending the power of the law to underserved individuals and communities. Its members are law faculty who are ultimately responsible for the stewardship of the law school, and especially for advancing its mission to nurture future leaders and foster an environment conducive to respectful, open dialogue on fundamental issues of law and justice. SALT members consider the non-discrimination policies of their schools to be central to that mission and to their members' roles as law professors. SALT brings the claims in this lawsuit on behalf of its members.

a. The law schools where SALT members teach have implemented non discrimination policies, often times after they were promulgated by SALT members who comprise the faculty of the law schools. These policies prohibit discrimination on the basis of, among other categories, sexual orientation, disability and age. The SALT members and law schools apply these policies to employers who seek to use their career placement office facilities, resources and personnel. In the past, SALT members' law schools applied their non discrimination policies to the branches of the U.S. military that sought to recruit at the law schools.

b. The non-discrimination policies at SALT members' institutions are more than statements of principle. They allow SALT members to pursue scholarly goals and prepare their students for the practice of law in an atmosphere that encourages debate, celebrates diversity and promotes the ideals of respect and tolerance within their communities. The non-discrimination policies forcefully send a vital message of the values embraced by SALT members and SALT members' law schools to students, faculty, staff, and visitors.

c. SALT members are now precluded from enforcing their law schools' non- discrimination policies as they have traditionally done and, for those that were responsible for adopting the policies, as they intended. They cannot apply the policies to military recruiters because of the threat that they and the institutions with which they are affiliated will lose federal funds under the Solomon Amendment. SALT members' law schools would return to applying their non-discrimination policies to military recruiters if the Solomon Amendment were enjoined.

d. In addition, the Solomon Amendment, by forcing law schools at which SALT members teach and work to abandon their non-discrimination policies, interferes directly with the law schools' ability to create an atmosphere that encourages debate, celebrates diversity and promotes the ideals of respect and tolerance, and consequently, with SALT members' ability to benefit from the pedagogical environment that exists because of it.

e. SALT members are both beneficiaries and recipients of the messages of non- discrimination sent by the policies and they are harmed by their respective law schools' suspension of their non-discrimination policies. They no longer benefit from the pedagogical environments created by the non-discrimination policies. These harms are ongoing and will continue until the Solomon Amendment is enjoined and SALT members' law schools can again apply their non-discrimination policies to military recruiters.

f. As for SALT members who developed, approved, and implemented their schools' non-discrimination policies, and thus were beneficiaries, senders, and recipients of the messages of non-discrimination sent by the policies, they are harmed by their respective law schools' suspension of their non-discrimination policies as they applied to the military because they cannot send or receive the message of non-discrimination free from interference caused by the Solomon Amendment. They too no longer enjoy the pedagogical environment fostered by the non-discrimination policy. These harms are ongoing and will continue until the Solomon Amendment is enjoined and SALT members' law schools can again apply their non-discrimination policies to military recruiters.

9. Plaintiff The Coalition for Equality ("CFE") is an association of students at Boston College Law School. Plaintiff Rutgers Gay and Lesbian Caucus ("RGLC") is an association of students at Rutgers University School of Law. They both are committed to furthering the rights and interests of all groups including gays and lesbians and bring this lawsuit on their members' behalf. Members of both associations are beneficiaries of law school policies directed at increasing diversity and inculcating values and fostering an environment in which respectful debate unfolds. Because of the Solomon Amendment, the rights of CFE's and RGLC's members to receive the educational messages sent by their respective law schools have been harmed.

Individual Plaintiffs

10. Plaintiffs Pam Nickisher, Leslie Fischer, Ph.D. and Michael Blauschild are students at Rutgers University School of Law (collectively, the "Student Plaintiffs"). Pam Nickisher and Michael Blauschild are residents of New Jersey. Leslie Fischer is a resident of Pennsylvania. As students, they are the beneficiaries of law school policies increasing diversity and directed at inculcating values and fostering an environment in which respectful debate unfolds. Because of the Solomon Amendment, the rights of the Student Plaintiffs to receive the educational messages sent by their law school have been harmed.

11. Plaintiff Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science, University of Southern California Law School, and Plaintiff Sylvia Law is the Elizabeth K.. Dollard Professor of Law, Medicine and Psychiatry at NYU Law School (collectively, the "Law Professor Plaintiffs"). As members of their respective law school faculties, the Law Professor Plaintiffs are beneficiaries, senders and recipients of the message of non-discrimination sent by USC's and NYU's non-discrimination policies. They are harmed by their law schools' suspension of their policies as applied to the military because they cannot send or receive the messages of non-discrimination free from interference cause by the Solomon Amendment. This harm is ongoing and will continue until the Solomon Amendment is enjoined.

Defendants

12. Defendant Donald Rumsfeld, the United States Secretary of Defense, heads the DOD, which oversees the United States Armed Forces. The Secretary of Defense is responsible for the formulation and execution of defense policy. DOD is the nation's largest employer, with 1.4 million men and women on active duty, another 1.2 million serving the Reserve and Guard components, and more than 650,000 civilians. DOD also makes available an estimated $1 billion in grants plus billions more in federal contracts every year to institutions of higher education.

13. DOD is responsible for the implementation of the Solomon Amendment. Specifically, DOD makes the ultimate determination whether an institution of higher education is in compliance with the Solomon Amendment. When DoD determines that a school is in violation, it first threatens to cut off grants and contracts to that school. Then, if not satisfied with an institution's compliance, it cuts off those grants and contracts and notifies other agencies that are, in turn, obliged to do the same.

14. Defendant Rod Paige is the United States Secretary of Education. Under his direction, the Department of Education makes available an estimated $3 billion in grants plus millions more in federal contracts every year to institutions of higher education covered by the Solomon Amendment.

15. Defendant Elaine Chao is the United States Secretary of Labor. Under her direction, the Depart-ment of Labor ("DOL") makes available monies in the form of grants and federal contracts each year to institutions of higher education covered by the Solomon Amendment.

16. Defendant Tommy Thompson is the United States Secretary of Health and Human Services. Under his direction, the Department of Health and Human Services ("HHS") makes available an estimated $12 billion in grants plus millions more in federal contracts every year to institutions of higher education covered by the Solomon Amendment.

17. Defendant Norman Mineta is the United States Secretary of Transportation. Under his direction, the Department of Transportation ("DOT") makes available monies in the form of grants and federal contracts each year to institutions of higher education covered by the Solomon Amendment.

18. Defendant Tom Ridge is the United States Secretary of Homeland Security. Under his direction, the Department of Homeland Security makes available monies in the form of grants and federal contracts each year to institutions of higher education covered by the Solomon Amendment.

FACTS

Law School Mission

19. Law schools are not merely vocational schools that churn out lawyers so that they can pass bar exams, draft briefs and close deals. Law schools aspire to train the next generation of leaders to pursue justice, respect the rule of law, and stand by principle.

20. Law schools have determined that diversity in their faculty and students is an essential precondition to this mission, both because the society these future lawyers will enter, and hopefully lead, is not monochromatic, and because discourse is richer in communities full of varied backgrounds, perspectives, and experiences.

21. Diversity serves no purpose if students and faculty feel inhibited from engaging in discourse. Thus, law schools have promoted, demanded, and strictly enforced, not merely diversity, but also tolerance and respect. Law schools nurture environments in which students are welcome to present their views, their ideas, and beliefs. Key to this environment, and key to their mission, therefore, is an uncompromising adherence to the principle that all who engage in discourse within the law school community are fully equal. Judgments based solely on race, creed, color, religion, gender, national origin, or sexual orientation have no place in the law school environment. They have no place because they undermine the law school's mission.

Non-Discrimination Policies

22. The message of diversity and tolerance is communicated by law schools through their faculty, their curriculum, and their policies. Almost every accredited American law school has adopted a non-discrimination policy. The words may vary but the content and the message communicated is the same:

[The] Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, or sexual orientation.

23. Law schools admit students, grant scholarships, grade exams, recruit and promote faculty, and hire staff in light of these principles. In furtherance of the policies, law schools also follow recruiting policies: They refuse to assist any recruiter who discriminates on the basis of characteristics unrelated to merit. Some have refused even to allow such recruiters on campus to recruit.

24. In so doing, the school conveys a message that law school personnel will not abet the discriminating employer's recruiting efforts. To do otherwise is antithetical to both the law schools' message and mission. This policy has substantive pedagogical value by pronouncing values that students do not necessarily learn from casebooks and lectures, values that law faculty hope students will internalize, and the policy reifies those values, modeling behavior that it hopes its students will follow in their law practices and lives as community leaders.

25. In the law school's judgment, this policy also helps nurture the sort of environment for free and open discourse that is the hallmark of the academy.

26. Law schools apply this policy even-handedly to all employers. Any employer who discriminates forfeits law school assistance in recruiting and might even be excluded from recruiting on campus. Students are free to seek jobs with employers that discriminate. However, they must do so without the law school's active support of that employer, and at times must do so without the law school's active support of that employer, and at times must do so off campus.

27. Because law schools applied their non-discrimination policies even-handedly, no exception was made for the military and its discriminatory policy regarding sexual orientation. Their motive has been neither to punish the military nor to undermine military recruitment. They sought to adhere to a principle that has long motivated the academy and to maintain the open, respectful academic environment they aspire to nurture.

The Solomon Amendment

28. In 1995, Congress responded to the non-discrimination policies of educational institutions by passing the Solomon Amendment, named for its sponsor, Representative Gerald Solomon of New York. Among the purposes of the amendment, according to a congressional supporter of the legislation, was to "send a message over the wall of the ivory tower of higher education." 140 Cong. Rec. 11,441 (1994). The amendment, which has become increasingly strict over the years in language and interpretation, currently covers funds allocated in two broad appropriations measures-one for the Departments of Defense and Transportation, and the other embracing the Departments of Labor, Health and Human Services, and Education, and related agencies. In its current incarnation, the Solomon Amendment provides that none of the funds in those two appropriations measures:

may be provided by contract or by grant (including a grant of funds to be available for student aid) to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents

(1) the Secretary of a military department or Secretary of Transportation from gaining entry to campuses, or access to students. . . on campuses, for purposes of military recruiting; or

(2) access by military recruiters for purposes of military recruiting to. . . information pertaining to students . . . enrolled at that institution (or any subelement of that institution) . . .

10 U.S.C. § 983(b). The Solomon Amendment also now applies to funds from the Department of Homeland Security. Pub. L. No. 107-296, Title XVII, § 1704(b)(I),(g), Nov. 25, 2002, 116 Stat. 2314, 2316.

29. The statute and implementing regulations effectively make the funding restriction provisions of the Solomon Amendment applicable only to those law schools that ban or restrict the military from recruiting as an expression of protest of the military's discriminatory hiring practices. Schools that ban the military from recruiting for other reasons are not subject to the provisions of the Solomon Amendment.

30. Under the terms of the Solomon Amendment, the funding prohibition is triggered only when an institution has a policy or practice that "prohibits, or in effect prevents" military recruiters from "gaining entry to campuses or access to students . . . on campuses" or access to "information pertaining to students." 10 U.S.C. § 983(b). DOD regulations promulgated under the statute exempt some schools that do not "provid[e] requested access" so long as they can demonstrate ''that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers." 32 C.F.R. § 216.4(c)(3).

31. The Solomon Amendment authorizes the Secretary of Defense to issue regulations prescribing procedures for determining whether an educational institu-tion has a policy of denying or preventing access to students on campus or to information. According to DOD, once it determines that an institution has violated the Solomon Amendment, the institution is no longer eligible for most funds administered by the Departments of Defense, Transportation, Labor, Health and Human Services, Education, Homeland Security, and related agencies. 10 U.S.C. § 983(d)(2).

32. In implementing the regulations, the DOD has taken inconsistent positions, and its current position is internally contradictory, particularly in regard to the statutory language about "subelements." DOD initially read the language to mean that only the sub element of a school that violated the Solomon Amendment would be punished. 63 Fed. Reg. 56,819 (Mar. 29, 1997). Without notice or comment, however, DOD amended its regulations to eliminate the subelement limitation from regulations governing its own funds, 65 Fed. Reg. 2056 (Jan. 13, 2000), but kept it in place as applied to the funds of other agencies, see 32 C.F.R § 216.

33. Under DOD's current reading of the law, upon its determination that any subelement of an institution of higher education is in violation of the Solomon Amendment, the Defendants are all required to stop payment on virtually all of their grants and contracts to the entire school and to award them no further grants or contracts.

Efforts to Comply With the Solomon Amendment

34. Virtually none of the law schools in the nation have barred military recruiters from campus although a handful have. What many did, however, was to develop devices to adhere to their non-discrimination policies even while ensuring full military access to interested students. Some did not let law school personnel arrange student interviews, but relegated the task to career services professionals from somewhere else at the university. Others would allow military recruiters on campus by invitation of any student or student group-and would make facilities available to them-but would not match students to recruiters or post military literature.

35. The military was still inundated with many more highly talented lawyers than it could accommodate. As one recruiter remarked, "Competition has been very keen in the past few years for both our intern and JAG attorney positions. Unfortunately, that means some very qualified applicants will not be selected for a position."

36. Lately, however, DOD, or officers of various branches of the military, has begun threatening law schools with a cutoff of federal funds for alleged violations of the Solomon Amendment. And the military has demanded more than just access. It has demanded the law schools' active participation in military recruiting. Typically, the military has communicated the demand not by specifying what the law school has done wrong. Rather, the military merely has declared that the law school is in default and that all federal funds will be cut off if the law school does not come into compliance.

37. Some law schools responded by requesting from DOD a clear statement of what it believes the law requires. DOD has consistently refused to offer concrete guidance, replying only that the inquiring school remains in default.

38. When law schools asked the complaining military officials how they could obtain review of their recruiting policies without risking suspension of federal monies, the typical response was that there was no review. In other words, the military officials claimed that the law school had to risk losing all of its federal monies before it could obtain DOD review. Review could be had only once the military determined that the law school was out of compliance, DOD recommended the suspension of funds, and funds were suspended.

39. The recruiting policies of law schools have no discernable impact on the military's ability to recruit, as the military was more than able to meet its JAG Corps recruiting needs before law schools began to suspend their non-discrimination policies. A law school's decision not to volunteer law school staff to help the military recruit is therefore entirely expressive in purpose and effect.

40. After nearly 18 months of exchanges between the military and various law schools, and in direct response to the threats of the military, as of the 2003 fall recruiting season, every law school in the nation that receives federal funds has permanently suspended the application of its non-discrimination recruiting policy to the military. As a result, law schools' statements of dissent and protest are being suppressed, and law schools are being forced to endorse, or appear to endorse, the military's discriminatory hiring policy-a message that is repugnant to them.

41. The injury to law schools, law faculties, and law students is constant and irreparable. Most law schools host employers officially in the fall and the spring, but their efforts on behalf of employers are perpetual. Before the last employer leaves campus in the fall, law school career services personnel begin to collect and disseminate the literature of employers who will be arriving in the late winter and early spring. In order to accommodate the military's demands for a spring recruiting cycle, law school personnel must begin making arrangements and organizing appointments far in advance. Thus, even as one recruiting season ends, the next begins, and the military's insistence on parity with non-discriminating employers means that throughout the year, it is demanding that law schools perform functions that the law schools would refuse to perform but for the threat of the Solomon Amendment.

CAUSES OF ACTION

Count I: Statutory Construction

42. The allegations of ¶¶1-39 of this Complaint are incorporated and re-pled.

43. The Defendants have misread and misapplied the plain terms of the Solomon Amendment and the regulations promulgated thereunder: (A) by demanding that law schools do more than permit "entry to campuses, or access to students . . . on campuses, for the purposes of military recruiting;" (B) by incorrectly interpreting the statute and the regulations to require that a law school offer military recruiters every service and accommodation given to employers who satisfy the law school's non-discrimination policy; and (C) by interpreting the Solomon Amendment to permit a university-wide funding freeze just because of a law school's purported non-compliance.

44. As a result of the military's misreading and misapplication of the Solomon Amendment and its im-plementing regulations, the Plaintiffs and their members have been and continue to be irreparably harmed.

Count II: Unconstitutional Conditions

45. The allegations of ¶¶ 1-42 of this Complaint are incorporated and re-pled.

46. The Solomon Amendment and regulations promulgated thereunder violate the rights of Plaintiffs (and/or of Plaintiffs' members) under the First Amendment to the Constitution of the United States, by imposing an unconstitutional condition on the receipt of federal funding, thereby impinging on Plaintiffs' academic freedom, freedom of speech, and freedom to associate with one another in pursuit of common objectives.

Count III: Viewpoint Discrimination

47. The allegations of ¶¶ 1-44 of this Complaint are incorporated and re-pled.

48. The Solomon Amendment, as written and implemented, constitutes impermissible viewpoint discrimination in violation of the First Amendment to the Constitution of the United States in that its funding restrictions apply only to law schools and other institutions that ban or restrict military recruiters in protest. Law schools and other institutions that exclude military recruiters for other reasons are not affected by the Solomon Amendment's funding restriction provisions.

49. Because the Solomon Amendment is viewpoint-based, it is presumptively unconstitutional and the military cannot rebut this presumption. The constitutional rights of Plaintiffs (and/or Plaintiffs' members) therefore have been, and continue to be, irreparably harmed.

Count IV: Compelled Speech/Suppressed Dissent

50. The allegations of' ¶¶ 1-47 of this Complaint are incorporated and re-pled.

51. The Solomon Amendment impermissibly prohibits the Plaintiffs (and/or Plaintiffs' members) from expressing dissent by cutting off critical federal funding to law schools that express their protest of and objection to the military's discriminatory hiring and personnel policies and by exposing allegedly non-compliant schools to public censure by identifying them in the Federal Register. The Solomon Amendment forces the Plaintiffs (and/or Plaintiffs' members) to express and subsidize a message of support for military, even though they abhor the military's discriminatory hiring decisions.

52. The constitutional rights of Plaintiffs (and/or of Plaintiffs' members) to express dissent and to be free from compelled endorsement of messages repugnant to them therefore have been, and continue to be, irreparably harmed.

Count V: Void for Vagueness/Overbreadth

53. The allegations of ¶¶ 1-50 of this Complaint are incorporated and re-pled.

54. The Solomon Amendment is unconstitutionally vague and/or overbroad and thus void under the First Amendment and the Due Process Clause of the Fifth Amendment of the Constitution of the- United States, in that it restricts a wide range of speech and associational activities protected under the First Amendment, lacks sufficient definitions or guidance regarding its application, grants unfettered discretion to DOD and low-level military officers to decide what constitutes compliance, and impermissibly chills the speech of Plaintiffs (and/or Plaintiffs' members).

55. The operative language of the statute and its implementing regulations are so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application. Moreover, the DOD, as the enforcing agency, has not only refused to clarify its interpretation of the statute or the regulations, but, through various recruiters and officers, also has given numerous conflicting interpretations to the statute and regulations. As a result, the constitutional rights of Plaintiffs (and/or Plaintiffs' members) have been, and continue to be, irreparably harmed.

Count VI: Due Process

56. The allegations of ¶¶ 1-53 of this Complaint are incorporated and re-pled.

57. The Defendants, by refusing to provide the university or the law school with the reason or reasons that the university is in violation of the Solomon Amendment, and by finding the university in violation without giving the university an opportunity to be heard, have violated the Plaintiffs' (and/or Plaintiffs' members') right to due process under the Fifth Amendment to the United States Constitution.

Count VII: Violations of the Administrative Procedure Act

58. The allegations of' ¶¶ 1-55 of this Complaint are incorporated and re-pled.

59. The DOD's elimination of the subelement limitation from the regulations governing its own funds without notice or comment period violated the provisions of the Administrative Procedure Act. 5 U.S.C. § 551, et. seq.

60. The DOD's failure to provide law schools with reasoned and supported explanations of how the law schools allegedly had failed to comply with the Solomon Amendment violated the Administrative Procedure Act. 5 U.S.C. § 551, et seq.

61. The DOD's violations of the Administrative Procedure Act have caused and continue to cause irreparable harm to the Plaintiffs (and/or Plaintiffs' members).

* * * * *

62. The Plaintiffs have no adequate remedy at law for any of these violations.

* * * * *

WHEREFORE, Plaintiffs respectfully request the Court to:

(1) Declare pursuant to 28 U.S.C. § 2201 that, as a matter of statutory construction, law schools have no obligation under the Solomon Amendment to do anything other than allow military recruiters to enter the campus in order to recruit, without expecting any support or other involvement from the law school;

(2) Declare pursuant to 28 U.S.C § 2201 that the Solomon Amendment-even when limited to a directive to allow the military on campus to recruit-violates the First an Fifth Amendments to the Constitution of the United States;

(3) Declare pursuant to 28 U.S.C. § 2201 that the Defendants have violated the provisions of the Administrative Procedures Act in their interpretation and implementation of the Solomon Amendment;

(4) Grant appropriate preliminary, and final, equitable relief enjoining the Defendants from enforcing the Solomon Amendment, including but not limited to, declaring law schools ineligible for federal grants or contracts, recommending ineligibility to the Principal Deputy Under Secretary of Defense for Personnel Readiness or any other DOD official, listing schools in the Federal Register as institutions that are not in compliance with the Solomon Amendment, or notifying any of the other Defendants or any related federal agency of such ineligibility for the purposes of terminating grants or contracts under the Solomon Amendment;

(5) Award reasonable attorneys fees and costs pursuant to 28 U.S.C. § 2412; and

(6) Grant such other and further relief as the Court deems proper.

Dated: October 14, 2003 Respectfully submitted,

/s/ E. JOSHUA ROSENKRANZ
E. JOSHUA ROSENKRANZ
(ER6734)

Timothy P. Wei (TW1134)
Sharon E. Frase (SF4906)
HELLER EHRMAN WHITE
& McAULIFFE LLP
120 West 45th Street
New York, NY 10036
Telephone: (212) 832-8300
Warrington S. Parker, III
(WP3514)

Aaron M. Armstrong (AAI123)
HELLER EHRMAN WHITE
& McAULIFFE LLP
333 Bush Street
San Francisco, California
94104-2878
Telephone: (415) 772-6000

EXCERPTS OF APPLETON AND TOKARZ DECLARATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

03 Civ. ____

FORUM FOR ACADEMIC AND INSTITUTIONAL
RIGHTS, INC., SOCIETY OF AMERICA
LAW TEACHERS, INC., ET AL., PLAINTIFFS

v.

DONALD H. RUMSFELD, IN HIS CAPACITY
AS U.S. SECRETARY OF DEFENSE, DEFENDANTS

DECLARATION OF SUSAN APPLETON
AND KAREN TOKARZ

I, Susan Appleton, declare pursuant to 28 U.S.C. § 1746, as follows:

1. I am the Lemma Barkeloo and Phoebe Couzins Professor of Law and former Associate Dean of Faculty at Washington University School of Law. I have taught at Washington University School of Law since 1975 and served as the Associate Dean of Faculty from 1998 until 2003. If called as a witness, I could and would testify to the following based on personal knowledge or on information and belief.

I, Karen Tokarz, declare pursuant to 28 U.S.C. § 1746, as follows:

2. I am a Professor of Law and the Director of Clinical Education at Washington University School of Law. I have taught at Washington University School of Law since 1979 and have been the Director of Clinical Education since 1980. If called as a witness, I could and would testify to the following based on personal knowledge or on information and belief.

We, Susan Appleton and Karen Tokarz, declare pursuant to 28 U.S.C. § 1746, as follows:

3. Washington University School of Law has a longstanding commitment to diversity and nondiscrimination, dating back to the earliest days of the school. In 1869, only two years after opening its doors, the School admitted its first woman student. Washington University is believed to be the first law school (certainly among the first law schools) in the nation to admit women students. The School admitted its first student of color in 1883. In the early 1970's, explicit affirmative action programs designed to recruit and retain under-represented minorities, primarily African-Americans but also underprivileged whites, enhanced the diversity of the student body. Even before federal legislation required equal access, students with disabilities were admitted to the School of Law, including students with visual impairments and hearing impairments as well as those requiring the assistance of wheelchairs.

Diversity, tolerance, and respect are hallmarks of the Washington University School of Law community. * * *.

4. Both Washington University and the School of Law expressly endorse and communicate their policies of non-discrimination. Both policies include sexual orientation as a prohibited basis for discrimination. The published University policy reads:

Washington University encourages and gives full consideration to all applicants for admission, financial aid, and employment. The University does not discriminate in access to, or treatment or employment in, its programs and activities on the basis of race, color, age, religion, sex, sexual orientation, national origin, veteran status, or disability.

See Exhibit 1.

5. The School of Law Faculty Rules were amended in May 1990 to add sexual orientation, religion, national origin and age to prior explicitly prohibited classifications of race, sex, and handicap, in order to conform this policy to the broad non-discrimination provisions published in the School of Law Admissions literature.

Faculty are prohibited from discriminating against students on grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation (Faculty Rule (K) 1).

See Exhibit 2.

6. Per the Faculty Rules, the School of Law Career Services Office since May 1990 has required all prospective employers seeking to use the Career Services Office facilities to sign a written assurance of non-discrimination and the School has applied this policy even-handedly to all employers. The policy does not prevent discriminatory employers from contacting students, nor is the goal to dissuade students from seeking jobs with those employers. Rather, the goal is expressive-to communicate to students, faculty, and staff that the School will treat all students equally and will not compromise on its non-discrimination policy. The School of Law policy reads:

Washington University School of Law is committed to a policy of equal opportunity for all students and graduates. The Career Services facilities of this school shall not be available to those employers who discriminate on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation. For purposes of this rule, the posting of employment notices on any bulletin boards designated for official law school business, or the posting or distribution of such notices by the law school administration elsewhere in the law school building, shall be considered making Career Services facilities available. Before using any of the Career Services interviewing facilities of this school, an employer shall be required to submit a signed statement certifying that its practices conform to this policy (Faculty Rule (K) 3).

See Exhibit 3.

7. In 1990, the Association of American Law Schools required its member schools to insist that employers who seek to use a law school's career services offices provide written assurance that they will not discriminate against student applicants based upon sexual orientation or any other protected category. In 1995, Congress enacted the Solomon Amendment, denying Department of Defense funding to institutions of higher education that prevented the military from recruiting on campus. In 1997, Congress extended the rule denying federal funds to universities and sub-elements of universities that denied access to military recruiters to grants and contracts provided by the Departments of Labor, Health and Human Services, Education, and Transportation.

8. From 1990 to 1997, the Washington University School of Law did not allow any employers who refused to sign the non-discrimination assurance use of the Career Services Office facilities. When a military recruiter signed the required assurance of non-discrimination, as the U.S. Army did prior to 1997, such recruiters were allowed to use the School of Law Career Services Office facilities. From 1996 to 2001, in response to the enactment of the Solomon Amendment, the School of Law Career Services Office allowed military recruiters who refused to sign the assurance (but not other employers who did not sign) to send out e-mail on the student list serve. The ROTC Department scheduled interviews on campus at the ROTC Building.

9. On January 13, 2000, the Department of Defense adopted interim regulations, effective immediately, to define an institution of higher education to include all sub-elements of such an institution, thus eliminating the pre-existing policy that treated schools and colleges within a university as independent actors for purposes of determining whether financial sanctions would be applied to universities at which one school or college excluded military recruiters.

10. In September 2000, the School of Law Career Services Office received letters and/or calls from U.S. Army, Navy, and Air Force recruiting officers stating their interest in recruiting Washington University law students at the School of Law, not at the ROTC Building. The Career Services Office initially responded that it preferred to continue the past practice of using the ROTC Building. The representatives of the military advised they would report the School to their superiors for violating the Solomon Amendment and represented that failure to comply with their requests would place Washington University federal grants and other funding at risk.

11. In response to these new demands from the military and the conflict with the School of Law's explicit non-discrimination policy, Joel Seligman, Dean of the School of Law, held an open forum on October 25, 2000 for faculty, students and staff. A large number of students and faculty, before and at that meeting, expressed deep concerns about the possible suspension of the School of Law's non-discrimination policy for military employers only.

12. On November 7, 2000, Mark S. Wrighton, Chancellor of Washington University, instructed the Law School to allow the military access to Career Services Office on-campus recruiting facilities. Chancellor Wrighton requested that the School of Law "except the Department of Defense's military recruiting programs from [the School of Law] policy of having to affirm that they do not discriminate on the basis of sexual orientation." He acknowledged that "[t]his action . . . will cause pain among members of the gay and lesbian community."

See Exhibit 4.

13. On November 8, 2000, Joel Seligman, the Dean of the School of Law, advised faculty, students, and staff that the School of Law would allow military recruiters access to the facilities of the Career Services Office, "while this [DOD interim] regulation remains in effect . . . because of the extraordinary impact a prohibition of recruitment would have on other schools throughout our University." He said, "For many of us, a policy of non-discrimination on the basis of sexual orientation reflects a fundamental moral value," and he acknowledged "how much pain will result from this action."

See Exhibit 5.

14. On November 8, 2000, 45 members of the Law School Faculty and Administration signed an open letter endorsing the University and School of Law non-discrimination policies and expressing concerns about the impending suspension of the policy for the military, an employer which openly discriminates against gays and lesbian student applicants. The Faculty Statement reads:

The undersigned members of the faculty and administration of Washington University School of Law write to reaffirm our support for the University and School of Law policies prohibiting discrimination based on sexual orientation and the School of Law policy barring discriminatory recruiters. We also wish to share our concerns regarding the temporary suspension of the policy as to military recruiters. We deplore the military policy that requires this suspension. It compromises our longstanding conception of the academic freedom of a faculty of law to determine appropriate ethical standards for the recruitment of our students and conscripts us into complicity with policies that unjustly degrade fellow persons [emphasis added]. All our collective experience with struggles for elementary justice under law suggests now, as much as ever, our ethical need to resist familiar attempts to divide people of good will from a sense of their common humanity.

See Exhibit 6.

15. On November 8, 2000, OUTLAW (the School of Law LGBT student organization) sent a letter to the Faculty and the Administration questioning the institution's commitment to non- discrimination when it allows exceptions to the non-discrimination policy, and expressing concern that such action conveys "school-sanctioned prejudice" against gay, lesbian, bisexual, and transgendered students. The letter reads, in part:

The law school should not yield in its goal of attaining a nurturing educational environment where all members of our community are treated equally without fear of persecution . . . As the representatives of law and justice on this campus, the School of Law has a unique duty and opportunity to uphold the policy it has adopted with regard to discriminatory hiring practices. The reasoning is clear: an unenforced policy is not a policy. The words of the policy on discrimination embody strong principles that are highly valued by the Washington University School of Law community. A failure to enforce these principles reduces the policy to mere rhetoric.

If we do not stand by our position, we send the message that, although the school has knowingly admitted gay, lesbian, bisexual and transgendered students, these groups have no protection here. This means they cannot enjoy the same benefits as other students and are subject to school-sanctioned prejudice.

Lawyers, historically the protectors of civil liberties, have a special obligation to uphold the principles of equality. This decisions offers [the School of Law] an opportunity to remain consistent with the promise made to us when we came to Washington University, that "we do not discriminate here, nor do we tolerate those who do."

See Exhibit 7.

* * * * *

17. On February 23, 2001, for the first time in over 10 years, Washington University School of Law suspended its non-discrimination policy and permitted access to the facilities of the Law School Career Services Office to an employer who refused to sign the non-discrimination assurance. The U.S. Army, Air Force, and Navy sent representatives to conduct interviews in the Law School building, as part of the Career Service Office's spring on campus interview program.

18. At the time of that visit (and subsequent visits) the Law School posted ameliorative statements outside the Career Services Office advising that the military had not signed the non-discrimination assurance that the Law School requires of all employers using its services. The ameliorative statement also was posted at the doorways to the building and outside the interview rooms. Since then, each time that the military recruiters visit campus or post job information, the Law School posts such ameliorative statements.

See Exhibit 9.

19. At the time of that first visit (and subsequent visits), many oppositional posters were hung by students and faculty throughout the building and a large protest was held at which students, faculty, and administrators participated. Following the protest a video was created of the protest. Copies of these posters are attached at Exhibit 10.

20. At that first recruiting session on February 23, 2001, some student protestors who opposed the military's presence on campus signed up for and attended interviews. Some gay students who desired to work for the Department of Defense also signed up for and attended interviews. Kevin Linder, WU '01, a former ROTC student at Princeton who has wanted to be an officer in the JAG Corps since high school, interviewed and admitted to the recruiter that he was gay. At the protest, Linder said that the recruiter advised him that he (Linder) was ineligible due to his sexual orientation. Linder told the audience,

[Even though I am now out about my sexuality,] I am the same person. I still want to be an officer. I still want to be an attorney. I still want to be a JAG Corps attorney. . . . I really, really felt the sting of overt discrimination aimed at me. When JAG was invited, when they forced themselves on campus, I felt that it was offensive. And I didn't really think that they should be able to come here without a fight.

21. Thomas J. Hill, WU '03, President of OUTLAW, also spoke (and cried) at the February 23, 2001 protest. He said, "I came to this school pursuing a dream of equality and justice and what that meant in our society. I thought I'd be fighting for the other person. Now, I find myself fighting the fight firsthand. Unfortunately, here and now my dignity has been jeopardized."

22. Ebony Woods, WU '03, President of BLSA, also spoke at the February 2001 protest, as did Professor Kimberly Norwood. Norwood said, "It is unbelievable that we are allowing these people into our home, into our place of justice. It is particularly painful for me because the very reason that the military gives for discriminating is the very reason that they used decades ago to keep African-Americans out."

23. Patavee Vanadilok, WU '01, President of the Student Bar Association, also spoke at the February 23, 2001 protest. She bemoaned that students have come to believe that the School is not in fact committed to non-discrimination and that hate speech and other forms of discrimination against gay and lesbian students and faculty will be tolerated by the School of Law. She said, "[T]he dark side of this community has been unleashed [in recent weeks]. It is because blatant and open forms of prejudice and hostility exist at the WU School of Law that we should support this vigil and protest against the suspension of this school's non-discrimination policy."

24. In Fall 2001, Spring 2002, Fall 2002, and Spring 2003, the U.S. military conducted interviews through the Career Services Office, although the School required that the interviews be conducted outside the Law School in an adjoining building which some other employers also used.

25. Further protests/vigils have been held on each occasion of visits by military recruiters (but for Fall 2001, due to events of September 11, 2001) featuring nationally prominent speakers such as Professor Sylvia Law (NYU), Professor Chai Feldblum (Georgetown), and Professor Aaron Belkin (University of California, Santa Barbara).

26. The Faculty Statement has been republished each year, most recently in March 2003, as the Law School has been forced to suspend its non-discrimination policy and permit military recruiters to use the Career Services facilities to recruit law students on campus, in response to the University's continuing concern that the Department of Defense will interfere with the entire University's federal funds.

* * * * *

EXHIBIT 5 TO APPLETON & TOKARZ DECLARATION

Memo From the Dean

_________________________________________________

MEMO FROM THE DEAN

_________________________________________________

To: Faculty, Students, and Staff

From: Joel Seligman

Date: November 8, 2000

Subject: Military Recruiters on Campus

This academic year, for the first time since this School adopted a policy prohibiting discrimination based on sexual orientation, an employer who openly discriminates against gay and lesbian people will be allowed access to the facilities of the School of Law's Career Services Office.

Both our University and the School of Law have adopted a policy of nondiscrimination on the basis of sexual orientation. The School of Law policy, which specifically applies to Career Services and which will otherwise remain in effect states that these facilities "shall not be available to those employers who discriminate on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation." Our policy further states that employers who wish to use the Career Services Office are required to sign a statement certifying that their practices conform to our policy. The United States military currently discriminates in its hiring and employment on the basis of sexual orientation. As a result we have not allowed the military to use the Career Services facilities to recruit our law students. In recent years, the Army JAG Corps has used our public lists serve to invite students to interview with them at the campus ROTC building.

Earlier this year, the Department of Defense adopted an interim regulation which removed the "unit exception" from the application of the Solomon Amendment. The Solomon Amendment was enacted by Congress in 1995 to withhold specified federal funds from law schools that denied military recruiters access to their campuses. The removal of the "unit exception" means that our law school's continued refusal to allow military recruiters to use the Career Service Office would place in jeopardy federal grants to other schools throughout our University, including grants from Health and Human Services, but not including student financial assistance.

After discussion with Chancellor Mark Wrighton it is clear that the law school will not be able to enforce its nondiscrimination policy against the military while this regulation remains in effect. Our School, like virtually every other law school in this country, will be required to permit the military to recruit while the Department of Defense Regulation remains in effect.

It is also clear, after meeting with interested students and faculty on Wednesday, October 25; reviewing the results of a student referendum; and receiving a large number of communications on the subject, how much pain will result from this action. For many of us, a policy of nondiscrimination on the basis of sexual orientation reflects a fundamental moral value.

The decision to permit military recruitment does not reduce our faculty's administrators, or students commitment to the goal of nondiscrimination on the basis of sexual orientation. This School will continue to support reasonable ameliorative efforts to signify our commitment to this goal.

The decision, nonetheless, to permit military recruiters on campus is necessary because of the extraordinary impact a prohibition of recruitment would have on other schools throughout our University. It trivializes this impact to say that this is just about money. At issue potentially are careers, the education of students, residents, interns, and fellows; patient care; and potentially cures to devastating diseases.

The Association of American Law Schools (AALS) Accreditation Standards require that this School of Law take steps to ameliorate the damage to those protected by our nondiscrimination policy. I will request that the Career Services Office place notices recognizing that the military recruitment practices are inconsistent with our School's nondiscrimination policy. The School of Law is attempting to organize a meeting with Professor Sylvia Law of New York University Law School in January 2001 to discuss why the military policy is wrong and national efforts at amelioration.

The AALS, joined by other educational organizations, has submitted comments to the Department of Defense arguing that the interim regulations are illegal. These regulations were adopted on an emergency basis without complying with the Administrative Procedure Act, which ordinarily requires federal agencies to provide notice of proposed rulemaking and an opportunity for public comments and a statement of the basis and purpose for the rule. Second, the language of the committee reports concerning the current Department of Defense appropriation may not provide an adequate basis for the Regulation's revision of the long accepted understanding of the earlier Solomon Act. This School of Law will explore with others in American legal education whether the new regulations might be challenged as illegal and how the School of law might contribute to such an effort.

EXHIBIT 7 TO APPLETON AND TOKARZ DECLARATION

TO: The Faculty of The School of Law

FROM: OUTLAW

RE: Military Recruiters on Campus

DATE: November 8, 2000

More than ten years ago, this law school's faculty adopted a policy of non-discrimination based on sexual orientation. Ironically, when the need for this non-discrimination policy finally arises, our community may abandon it in favor of the discriminatory hiring practices of the United States Military. The threat is asserted under penalty of losing a considerable amount of Federal funding to the School of Medicine. We are being asked to abandon our policy on discrimination in the School of Law in favor of the monetary gain to Washington University. The law school should not yield in its goal of attaining a nurturing education environment where all members of our community are treated equally without fear of persecution. The law school, as a proactive force advocating against discrimination, should not permit military recruiters' use of law school facilities to promote policies which discriminate against sexual minorities. OUTLAW is asking that our law school community persevere in its activism and challenge the continuing invidious discrimination against minorities.

Despite the universal Policy on Discrimination shared by all departments and programs at Washington University, military recruiters are still permitted to engage in discriminatory recruiting activities on this campus. As the representatives of law and justice on this campus, the School of Law has a unique duty and opportunity to uphold the policy it has adopted with regard to discriminatory hiring practices. The reasoning is clear: an unenforced policy is not a policy. The words of the Policy on Discrimination embody strong principles that are highly valued by the Washington University community. A failure to enforce these principles reduces the policy mere rhetoric. In order to give meaning to the Policy on Discrimination, the military must not be allowed to reassert its discriminatory policies on our campus. Because the main purpose of our non-discrimination policy as it effects the law school community concerns employment recruiting, if we do not oppose the use of our facility for military recruiting, our actions effectively negate the "sexual orientation" clause of the non-discrimination policy altogether. As members of the legal community, we should understand the negative effect that failure to uphold this policy would have on our community at large.

In the interest of further distinguishing Washington University School of Law as a progressive and leading law school, it is now time to take a stand. * * *.

If we do not stand by our position, we send the message that, although the school has knowingly admitted gay, lesbian, bisexual and transgendered students, these groups have no protection here. This means they cannot enjoy the same benefits as other students and are subject to school-sanctioned prejudice. The law school has two options: welcome gay students and ensure their equality on campus, or inform them of their unfair treatment they can expect at Washington University.

OUTLAW believes that the law school cannot afford to compromise on this critical issue, even at great cost to the University. Although the ultimate choice of disallowing military recruiting in our building lies with Chancellor of the University, a decision by the law school to exclude military recruiters from our facilities would send a clear message to the University community and the public at large. This decision would be an unequivocal declaration that the military's hiring practices are inappropriate and unjust. Lawyers, historically the protectors of civil liberties, have a special obligation to uphold the principles of equality. This decision offers an opportunity to remain consistent with the promise made to us when we came to this school that, "we do not discriminate here, nor do we tolerate those that do." This message, from a respected body of learning, might lead legislators to see that the ideology supporting discriminatory policies is unacceptable.

OUTLAW, therefore, asks for your vote in upholding our current Policy on Discrimination. We require more than the "ameliorative measures" prescribed by AALS in reconciling this injustice because they fail to address our deepest concern. In order to ensure continued equality for all students at Washington University, OUTLAW suggests that we unite and continue to prohibit military recruiting in the law school. The spirit of the law and the principles of justice are simply to valuable to sacrifice in the name of bureaucracy or money.

EXHIBIT 8 TO APPELTON & TOKARZ DECLARATION

_______________________________________________

STUDENT BAR ASSOCIATION'S (SBA) RESOLUTION

_______________________________________________

In a special Session on Wednesday, February 21, 2001, the Student Bar Association passed the following Resolution by a vote of 20 in favor, 3 in opposition and 0 abstentions:

WHEREAS

the Student Bar Association is both a representative body entrusted with the responsibility to enact the will of its constituents and a group of student leaders with a duty to uphold the values of the greater Washington University School of Law Community;

WHEREAS

Washington University School of Law has enacted, supported, and believes in a Non-Discrimination Policy that expressly prohibits discrimination based on gender or sexual orientation;

WHEREAS

the United States Department of Defense has enacted, supported, and believes in a hiring policy that blatantly discriminates based on gender and sexual orientation;

WHEREAS

Washington University School of Law has therefore historically barred United States Military Recruiters from recruiting law students within its walls;

WHEREAS

the United States Department of Defense therefore has improperly issued an interim regulation under the authority of the Solomon Amendment, forcing Washington University School of Law, as well as all other American Association of Law Schools accredited law schools, to suspend its Non-Discrimination Policy, allowing Military recruitment within its walls;

WHEREAS

the United States Department of Defense's insistence on the practice of discrimination at Washington University School of Law is invidious, and perpetuates both ignorance and injustice at a time when the Nation formally and generally has repudiated prejudice and bias as the bases of social policy;

WHEREAS

the entire Washington University School of Law Community is undeniably adversely affected, pained, and outraged at being hindered in the pursuit of education, forced to compromise its principles in the face of economic threat, and further forced to suffer discrimination based on gender and sexual orientation;

WHEREAS

the Faculty and Administration of Washington University School of Law believe that the students should express their concern that a wise Non-Discrimination Policy is so suspended, and therefore support the ameliorative actions prescribed by the American Association of Law Schools, and further propose ameliorative efforts based upon the suggestions of concerned students;

THEREFORE,

be it resolved by the Student Bar Association, that we do hereby clearly, undeniably, and unequivocally resist, oppose and are outraged by the suspension of the Washington University School of Law Non-Discrimination Policy;

THEREFORE,

be it further resolved by the Student Bar Association, that we hereby clearly, undeniably, and unequivocally support and subscribe to the ameliorative efforts proposed by the Faculty and Administration of Washington University School of Law based upon the suggestions of concerned students;

THEREFORE,

be it further resolved by the Student Bar Association, that we do hereby clearly, undeniably, and unequivocally support and join with the Washington University School of Law Community in its pain, outrage, and struggle during the suspension of our Non-Discrimination Policy;

THEREFORE,

be it further resolved by the Student Bar Association, that we do hereby clearly, undeniably, and unequivocally support and believe in the Washington University School of Law Non-Discrimination Policy as it stands, expressly prohibiting discrimination based on gender or sexual orientation; and the method by which this Policy has historically been enforced, preventing United States Military recruitment within our walls.

EXCERPTS OF CHEMERINSKY DECLARATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

No. 03-Civ.__

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., SOCIETY OF AMERICAN LAW TEACHERS, INC.
ET AL., PLAINTIFFS

v.

DONALD H. RUMSFELD. IN HIS CAPACITY AS U.S. SECRETARY OF DEFENSE; ET AL., DEFENDANTS

DECLARATION OF ERWIN CHEMERINSKY

I, Erwin Chemerinsky, declare pursuant to 28 U.S.C. § 1746, as follows:

1. I am currently the Sydney M. Irmas Professor of Public Interest Law Legal Ethics and Political Science at the University of California School of Law. ("USC Law" or "the Law School"). I have been on the USC Law faculty since 1983. If called as a witness. I could and would testify to the following based on personal knowledge or, if indicated, based on information and belief. This declaration, of course, reflects my personal views and does not communicate the views of the Law School or University.

USC's Pedagogical Mission And Principles of Equality

2. USC Law's core purpose, of course, is to teach students the law. However, this means more than a rote memorization of legal rules. USC Law School is not an extended bar review course. Instead, teaching and learning the law means exploring the philosophical, economic and intellectual underpinnings of the law in its historical and current form. It means showing the law's profound influences on society, good and bad. It means showing future lawyers and judges how their actions, from the filing of a complaint to the arguing of a case, can profoundly change our society, its mores and values. Therefore, the Law School's mission requires students to analyze those legal principles, as expressed in the Constitution, the common law, statutes, regulations, and policies, that our society now holds dear. As well, it requires a close look at those laws and legal principles our society now finds anathema, such as state sponsored discrimination. Critical to this mission is true understanding of the viewpoints that formed past laws and the viewpoints that may be sponsored or trammeled by present and future laws.

3. Diversity in our Law School and toleration of viewpoints, beliefs, and backgrounds is essential to this mission. It is only by the free expression of ideals and beliefs from individuals with a variety of viewpoints and personal experiences that the Law School's goal of teaching the law can be achieved.

4. Current and incoming students need look no further than the Student Handbook to understand that this is how USC Law has conceived the law should be taught and that this is the manner in which the law is taught. The Student Handbook contains a statement entitled USC Law's "Principles of Community." That statement begins:

The University of Southern California's Division of Student" Affairs bears a central responsibility for the provision to students of services and resources which will assist in their total development - intellectual, social, cultural, physical, emotional and moral.

A true and correct copy of this statement is attached at Exhibit 1.

5. It then continues:

USC is a multicultural community of people from diverse racial, ethnic, and class backgrounds, national origins, religious and political beliefs, physical abilities, and sexual orientations. Our activities, programs, classes, workshops, lectures, and every day interactions are enriched by our acceptance of one another, and we strive to learn from each other in an atmosphere of positive engagement and mutual respect.

We want to make explicit our expectations regarding the behavior of each member of our community. As adults, we are responsible for our behavior and are fully accountable for our actions. We each must take responsibility for our awareness of racism, sexism, ageism, xenophobia, homophobia, and other forms of oppression.

Bigotry will not go unchallenged within this community. No one has the right to denigrate another human being on the basis of race, sex, sexual orientation, national origin, etc. We will not tolerate verbal or written abuse, threats, harassment, intimidation, or violence against person or property.

See Exhibit 1.

* * * * *

7. Consistent with its now 103 year commitment to diversity, to its fostering of a pedagogical philosophy that demands that students and faculty understand and consider diverse views, and consistent with its implied and explicit stand against discrimination as antithetical to its mission, USC has long had a written non-discrimination policy (the "Non-discrimination Policy" or "Policy"), the current version of which states:

USC is firmly committed to a policy against discrimination based upon ethnicity, natural origin, disability, race, religion, political beliefs, gender, sexual orientation, or age.

A true and correct copy of the Policy is attached at Exhibit 3. Far from signaling a new policy, USC Law's Policy is merely a formalized statement of what has always been an integral feature of USC Law's ethos, namely that USC Law cannot tolerate discrimination of any kind in whatever form and fulfill its educational mission. USC Law recruits and enrolls students based in part on its non-discrimination policies. As well, it insists that its students, employees and faculty abide by these policies. In short, integral to USC Law's philosophy, its message and its long tradition is that discrimination will not be tolerated or sanctioned by USC Law.

8. The Law School's pedagogical mission and its policies are not mere platitudes that are handed down for reluctant enforcement. I believe them to be essential to my role as a member of the faculty. I came to and have stayed at USC Law precisely because it fosters an open environment where the ideas of all have merit and where the students can be taught to be positive and productive members of the community in all its aspects.

* * * * *

Recruiting and Career Services

10. On information and belief, USC Law extends its Non-discrimination Policy to potential employers who recruit on campus. The Law School Career Services Office instructs those employers:

The Law School is firmly committed to a policy against discrimination based on ethnicity, national origin, disability, race, religion, gender, sexual orientation or age.

Consequently, the Career Services facilities of the Law School are available only to those employers whose practices are consistent with the nondiscrimination policy. Employers are required to sign a statement of compliance before participating in any on-campus interviewing program and when listing a position with the Career Services Office. The Law School takes compliance with the non-discrimination policy seriously and will fully investigate complaint of discrimination.

A true and correct copy of this statement is attached at Exhibit 5.

11. On information and belief: there are several reasons for USC Law's decision to apply the Policy in this manner. First, it was consistent with the Law School's own non-discrimination values and messages. Second, USC Law wished to convey its non-discrimination message to as wide an audience as possible. The Law School was not merely interested in conveying the message that it did not believe in discrimination; it also wished to convey the message that it would not tolerate discrimination and would not be seen to tolerate it expressly or implicitly. Third, USC Law students are from a diverse background and the Law School wished to ensure that each and every student had the opportunity to be considered on their merits by each and every employer who used the Career Services Office. As Law School Dean Matthew L. Spitzer explained in an August 19, 2002 open letter to the use Law community:

The reason behind applying our policy to employers is one of fairness to our students: we recruit and enroll students based in part on our non-discrimination policies; and we-wish to assure our students that they will receive equal treatment while enrolled at USC. Therefore, we consider it inappropriate to provide services to any employer whom we know has an affirmative policy of discriminating against certain of our students in violation of our non-discrimination policy.

A true and correct copy of dean Spitzer's letter is attached at Exhibit 6.

12. As the Dean went on to explain:

Each year the military employers seeking to recruit on campus indicate that they cannot certify that they are in compliance with the Law School's policy because they are not able to certify that they are in compliance with our policies because they discriminate on the basis of age, disability or sexual orientation.

Exhibit 6.

On information and belief, on the basis of Dean Spitzer's August 19, 2002 letter, I understand the information in the following paragraphs to be true:

13. Following the adoption of the Solomon Amendment in 1994, which threatened to cut off funding for schools that did not allow the military to recruit on campus, USC Law continued to restrict access to military recruiting at the Law School because of the military's refusal to certify that it did not engage in discrimination. See Exhibit 6.

14. When Congress enacted another version of the Solomon Amendment ("Solomon II") in 1997 which broadened the types of federal funds put at risk to include some types of student aid, USC Law was one of only a small number of schools that continued to restrict access to the military. See Exhibit 6.

15. USC Law School did not want to endorse the military's position on "discrimination, but the-likelihood of losing this federal funding prompted the Law Schools to create an exception to its non- discrimination policy for military recruiters. The Law School allowed military recruiters to recruit Law School students; however, in order to continue its long tradition and stance against discrimination, the Law School asked that the military recruiters do their recruiting at the ROTC offices located on the campus of the University of Southern California ("USC"). The ROTC offices are conveniently located on the USC campus. In contrast, all other employer interviews take place across the street from the Law School campus. See Exhibit 6.

16. Thus, USC Law did the following for military recruiters: Military recruiters were provided the standard employer information and material, information and materials provided to each and every employer recruiting on the Law School's campus; military recruiters were referred to the ROTC offices so that they could schedule space for an interview (the recruiters were familiar with this process and the ROTC offices); the Law School then posted a notice in the weekly career services newsletter, along with all other employer announcements, the date when the military recruiters would be at USC and the place they would be located; finally, the Law School made available to all students the materials provided by the military recruiters. See Exhibit 6.

17. This process worked well for the military, and military recruitment of USC Law School students increased. Between 1990 and 1993, no graduates were hired by the military. Between 1994 and 1996 three graduates were hired. Between 1997 and 2001, nine students were hired by the military. See Exhibit 6.

18. The military recognized the benefits of this policy although it did require USC Law to make an exception to its non-discrimination policies. More than once, military recruiters initially notified the Law School that its method of accommodating military recruiters was not in compliance with the Department of Defense regulations promulgated pursuant to Solomon II. However, until 2001, each year the military changed its position and approved the arrangements. See Exhibit 6.

19. The military has gone so far as to applaud the accommodation. For example, in 1998 the Department of the Army concluded that the accommodation was in compliance with federa1 regulations. Lieutenant Robin L. Hall, Chief Judge Advocate Recruiting Office for the Department of the Army, wrote on August 31, 1998," Thank you for providing our military recruiters a degree of access to students that is equal in quality and scope to that afforded other employers, consistent with the regulations. . . ." Exhibit 6.

20. However, in 2001, the military changed its position, without providing a reason for doing so. On December 17, 2001, United Air Force Colonel Daniel B. Fincher wrote to the President of USC, Steven B. Sample, asking for clarification of the Law School's policies for military recruiters. USC General Counsel, Todd Dickey, responded to this letter by providing Colonel Fincher the information concerning the policy as described above. See Exhibit 6.

21. On May 30, 2002, despite six years of the same policy and as many, if not more, recruiting trips by the various branches of the military, including the Air Force, for the first time Colonel Fincher informed Mr. Dickey that the Law School was not in compliance with federal law and regulations. Colonel Fincher stated "If the law school allows the military full access to the services of the Career Services Office, the students, and the law school, your institution will be in compliance with federal law." Colonel Fincher also wrote that the Law School had to modify its practices prior to July 1, 2002. If not, Colonel Fincher's letter stated that he would recommend to the Secretary of Defense that all federal funding to the University should be denied. Exhibit 6.

22. In response to the letter, the General Counsel of USC contacted the Department of Air Force and the General Counsel of the Air Force. USC explained that the Law School's practices complied with federal regulations and that they served the goals of the military. First they allowed students interested in military employment to pursue that interest as shown by the recruiting data. In this regard, USC also noted that its military recruiting policy benefited the military because it minimized student protests that might hinder the military's ability to recruit students. Second, they allowed the Law School to maintain its commitment to non-discrimination. Exhibit 6.

23. In response, the Air Force General Counsel, Mary L. Walker, stated that the Law School's military recruitment practices were not in compliance with federal regulations and Solomon II. The military apparently was not convinced by the data showing that the policy exception was working to the benefit of military recruiters. By letter dated August 13, 2002, the Air Force informed USC that "While we understand JAG recruiters and USC students may face protests if they participate in your OCI program, it is important the United State Air Force be treated the same as any other employer. . . ." Exhibit 6.

24. To my knowledge, nowhere in the August 13, 2002, letter, or in any other correspondence with the Air Force, was there any reason given for the military's change of position in 2001. That is, the military has never explained why the Law School's recruitment policies were satisfactory from 1995 until 2001 but not thereafter. Moreover, no one, to my knowledge, explained or has explained how treating the Air Force "the same as any other employer" would further advance the military's interest in a way that the Law School's recruitment policy would not or had not.

25. In addition to corresponding with the General Counsel of the Air Force, USC's General Counsel also spoke to a Mr. Reed, an attorney in the Office of the General Counsel of the Department of Defense. In his August 19 letter Dean Spitzer described that conversation as follows:

Mr. Reed stated that the Department of Defense would not interfere with the Air Force's decision, and that the only way to ascertain the Secretary of Defense's position on the matter would be if we prohibited the Air Force from participating in [on campus interviewing] and the Air Force recommended to the Secretary that our federal funding be revoked for non compliance. . . . Mr. Reed confirmed that Department of Defense regulations do not provide an opportunity for a school to "cure" its, perceived compliance. While we may request that the Secretary advise us of his decision prior to any action being taken with regard to our federal funding, there is no requirement that he do so.

While sympathetic to our position, Mr. Reed stated that in today's military climate, the Department of Defense "has the resolve to use whatever legal avenues are made available" to it-including the Solomon Act. He said that the current mood in the Department of Defense is that it "doesn't want to play games" with the law schools, and expects the law schools to abide by all of the protections the Solomon Act has to offer. In his view, because Congress has consistently been strengthening the Solomon Act over the past several years, Congress would disapprove if the Department of Defense did not take full advantage of the Solomon Act's protections, and the Department likely will not risk offending Congress because it continually goes before Congress for funding and other assistance. In short, while Mr. Reed would not predict how the Secretary would rule on the Law School's practice of conducting military recruiting at our ROTC facilities, his statements implied that now is not the time to challenge the Air Force on this issue.

Exhibit 6.

26. Following this correspondence with Mr. Reed and the Air Force's General Counsel, the Law School changed its military recruitment policy. Exhibit 6. On information and belief, the military now participates in all Career Services Office programs, including the on-campus fall interview program although it violates the Law School's Non-discrimination Policy.

27. On information and belief, the Law School believed it had no choice but to do this. The only choice USC and the Law School had was to comply fully with the military's dictates or lose millions of dollars in federal funding essential to USC's well being. Even were the Law School and USC ultimately vindicated, the fact that they would receive no federal funds while pursuing that result would cripple USC and the Law School, depriving students of an education. Neither USC nor the Law School could take this risk.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.

* * * * *

EXCERPTS OF ESKRIDGE DECLARATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

03 Civ. ____

FORUM FOR ACADEMIC AND INSTITUTIONAL
>RIGHTS, INC., SOCIETY OF AMERICAN
LAW TEACHERS, INC., ET AL., PLAINTIFFS

v.

DONALD H. RUMSFELD, IN HIS CAPACITY
AS U.S. SECRETARY OF DEFENSE, DEFENDANTS

DECLARATION OF WILLIAM N. ESKRIDGE

I, William N. Eskridge, Jr., declare, pursuant to 28 U.S.C. § 1746, as follows:

1. I am a 1978 graduate of the Yale Law School (also referred to herein as "Yale Law" or the "Law School"). Since 1998, I have been a tenured Professor of Law at the Law School and have held a Chair as the John A. Garver Professor of Jurisprudence. During academic year 2001-02, I was the Deputy Dean at the Law School. If called as a witness, I could and would testify to the following based on personal knowledge, or if indicated, on information and belief.

The Yale Law School's Educational Mission

2. In 1974, while in graduate school at Harvard University, I applied to and was admitted to several leading American law schools. The reason I chose to attend the Yale Law School was its commitment to academic values of critical inquiry. I wanted to learn legal reasoning and rules, but I also wanted to approach this body of professional discourse critically. I found Yale to be a good environment for this pedagogical goal.

3. The mission of the Yale Law School, then and now, has not merely been to prepare students for the practice of law, but to foster thoughtful research and discourse on law and justice. This mission has been central to the Law School since at least 1874, when then-President Woolsey declared: "Let the school, then, be regarded no longer as simply the place for training men to plead causes, to give advice to clients, to defend criminals; but let it be regarded as the place of instruction in all sound learning relating to the foundations of justice. . . ."

4. Throughout its history, the Law School's faculty, students, and deans have taken a broad view of the role of law and lawyers in society. Yale Law prides itself in seeking to train lawyers not just for private practice, but for public service and teaching. Yale University ("Yale" or "the University"), the academic institution of which Yale Law is a part, has vested it with the authority to do so as it sees fit with near-absolute autonomy.

5. Because I had grown up in a sex- and race-integrated environment, I considered a plurality of voices important to the critical project. I believed that a law school creates this environment in part through the students that it selects to participate in its academic community. I was fairly well-impressed by Yale Law's student diversity during my time there (1975-78). There was a better racial, gender, and class mixture of students at the Yale Law School than I had found at my undergraduate school or at my graduate school department. Over the last 25 years, the Law School has become significantly more diverse. From my perspective as an alumnus, and from the Law School's perspective as an institution, this has been central to the educational mission of the school.

6. Admitting a diverse class plants the seeds for free dialogue, but the hospitable setting of openness and sensitivity blooms best when the Law School is able to communicate those foundational values of diversity and equality effectively, live by them faithfully, and enforce them consistently. Yale Law's normative baseline is a commitment to respect and equality, which depends on an attitude that everyone engaged in discourse is fully equal, and that they and their ideas will be judged on the basis of their character, merits and accomplishments, not on the basis of invidious comparisons. For example, in November 2002, an African-American student was accosted in the student lounge by a staff member, who reportedly asked him, "You don't look like you belong here." That student and many others in the community were justifiably concerned about this incident. Consistent with our general non-discrimination Policy, the Dean called a town-hall meeting, where he took responsibility and offered amends for the incident. The Faculty voted to establish a committee to study the experience of racial minorities at the Law School and to suggest ways to make that experience better.

* * * * *

8. In my experience as a student, however, there were limits to Yale's openness and, therefore, to Yale's commitment to cutting-edge legal discourse. Between 1975 and 1978, I do not remember a single sympathetic or even neutral reference to gay people from any professor or student at the Yale Law School. Homosexuality was not openly discussed in any class I took- even though gay rights attorneys were challenging sodomy laws all over the country as violations of the privacy right, lesbian and gay soldiers were questioning their exclusion from the armed forces, and gay, lesbian, and bisexual teachers, publishers, and student groups were making new first amendment law almost every month. As many as 10% of my graduating class was lesbian, gay, or bisexual, but most of us were in the closet and many of us were afraid of identifying ourselves even to other gay people. The universal feeling among gay students I knew (or came to know later) was that you could not have a successful legal career if you were professionally open about your minority sexual orientation. So no one was.

9. Even a whiff of lavender would, we thought, disqualify you from jobs at the most prestigious law firms. There was some question whether one could become a member of the bar associations in some states if one were a "practicing homosexual." The Yale Law Journal seemed-to us-to penalize students for gender or sexual variation. One of the most brilliant students in my class was passed over for an officership of the Yale Law Journal, allegedly because he was considered to "flaunt" his homosexuality, and another capable student did not even submit his name for an officership, in my opinion partly because of rumors that he was gay.

10. As a closeted gay student, I assumed that being secretive about one's sexual orientation was part of the nature of things and that neither the law nor our professors offered us any hope for more dignified treatment. I was resigned to this reality, but several of my student colleagues were not. Their activism proved to be a transforming event in the history of the Yale Law School and in my own life.

Yale Law's Adoption of a Non-Discrimination Policy in 1978

12. As of 1978, the Yale Law School had codified its credo of non-discrimination in a formal policy ("Policy") that refused to allow discriminatory employers to use our Placement Office. The 1977-1978 Bulletin (p. 113) said this:

The Law School has long taken a vigorous stand against any discrimination on grounds of religion, race, sex, or national origin in the use of placement facilities by employers. A Placement Committee composed of faculty, students, and alumni has been formed to deal with specific complaints from students of such discrimination. * * *

(A true and correct copy of this page of the Bulletin is attached as Exhibit 1 to this Declaration.). This Policy was considered integral to the equality of opportunity and critical inquiry which we consider to be the hallmarks of the Law School. Anyone on campus who discriminates in ways that the Law School considers invidious strikes at the heart of Yale Law's values, threatens to shatter the setting of openness and sensitivity that the Law School strives so hard to cultivate, and disrupts the Law School's expression of its endorsement of the values of diversity and equality.

13. I was aware of this Policy when I was a student, and I was further aware that it did not include people like me in its protections-nor did I expect the Law School to do so. Bob Weiss, my colleague in the Class of 1978, did not share my acquiescence. He and several other students put this inconsistency to the Law School Faculty: You are committed to equality, and you say you will not be complicit with any discrimination against your students-but the most open and pervasive discrimination is that faced by your lesbian, gay, and bisexual students. So what are you going to do about it? (We were informed that the law schools at NYU and USC had just adopted policies barring employers who discriminated against gay students.)

14. On information and belief: In meetings held in late April and the first week of May 1978, the Yale Law School Faculty deliberated a proposal by the Placement Policy Committee, that the Policy be amended to include sexual orientation discrimination.1 A number of objections were posed. The chief ones were that the Faculty should not take positions on political issues "external to the school," and that sexual orientation discrimination was not as serious a matter as sex or race discrimination. Supporters of the proposal responded that if the Law School were going to operate a Placement Office, it must take responsibility for discrimination that occurred under its auspices. The Law School has an obligation to all its students, including its lesbian, gay, and bisexual students. This was an obligation of community.

* * * * *

16. On information and belief: one professor reportedly summed up the dual obligations the Law School had to its lesbian, gay, and bisexual students: "[O]pposition to the proposal which rested on the absence of a record of refusals to hire missed the point. The point was the necessity for concealment of homosexuality, and consequences of such concealment. A decision on the merits was appropriate because the issue involved both our employment service and members of our community, whom we admitted without regard to sexual preference and who deserved our protection."

17. On information and belief: At the meeting of May 4, 1978, the proposal won a vote of 23 to 7, and further polling by the Dean confirmed that the proposal was adopted by the requisite majority. It was reflected in the 1978-1979 Bulletin (p. 109). The current version of the Policy is as follows:

Yale Law School is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients.

(A true and correct copy of this page of the Bulletin is attached as Exhibit 2.)

18. The Faculty's 1978 amendment to the Policy was perceived by most of the lesbian, gay, and bisexual students as a signal that they were accepted as equal members, perhaps for the first time, by the Law School community. On information and belief, based on conversations my student Derek Dorn (Class of 2002) or I have had with dozens of gay and lesbian Law School alumni,2 the 1978 Policy also initiated a process by which the Yale Law School not only became an openly accepting place for gay, lesbian, bisexual, and transgendered students and professors, but also became a center for fact-based and critical thinking about issues of sexuality, gender, and the law.

* * * * *

20. In my informed opinion, the welcoming attitude of Yale Law to sexual and gender minorities has had a direct payoff in the intellectual life of the Law School and has had an influence beyond Yale's ivy walls. I was a Visiting Professor at Yale Law in Fall Term 1995. My main goal was to try out on the Yale students a first draft of the teaching materials Professor Nan Hunter and I had developed on Sexuality, Gender, and the Law for Foundation Press. The seminar I taught was filled with students (of various orientations) brimming with ideas and insights about these issues, and their brilliant discussions and comments on my casebook dramatically influenced us as Nan and I redrafted it in the next year. Sexuality, Gender, and the Law, published in 1997, is an important collaborative effort that would not have been possible without these law students-one of whom (Kenji Yoshino, Class of 1996) is now the co-author of the other leading sexuality and the law casebook, published by the West Publishing Company. Professor Yoshino and I both joined the Faculty in 1998, and we have emerged as leading authorities on the issues treated in our books and articles.

21. In my informed opinion, the Supreme Court's recent decision in Lawrence v. Texas illustrates the way in which the Yale Law School's commitment to factual, rational, and non-discriminatory discourse about sexual and gender minorities has enriched American public law. Lawrence overruled the Court's earlier decision in Bowers v. Hardwick, which had ruled that the claim that American constitutional traditions protected intimate relationships of gay people was, "at best, facetious." Scholarship by a range of thinkers, many of them post-1978 Yale Law graduates, demonstrated the factual and normative problems with the Court's opinion in Hardwick. Yale graduates were key players in that precedent's demise. The brief for the prevailing parties in Lawrence was masterminded by one Yale Law alumna (Ruth Harlow, Class of 1986, Lambda's Legal Director), and the oral argument for the petitioners was by another alumnus (Paul Smith, Class of 1979)-both beneficiaries of the 1978 Policy amendment. The opinion for the Court cited and drew heavily on the data, materials, and arguments presented by the historical brief I filed for the Cato Institute and by the international law brief Professors Harold Koh and Kenji Yoshino (both Yale Law professors) filed for Mary Robinson and various international human rights groups. The majority opinion also cited and drew extensively from my published historical critique of Bowers. Even Justice Scalia's dissenting opinion cited and learned much from my book Gaylaw: Challenging the Apartheid of the Closet (1999).

22. It is too much to say that the outpouring of Yale-based lesbian and gay advocacy and scholarship is the direct result of the 1978 Policy amendment. But I am sure that my own work criticizing Bowers, based upon extensive historical research, would not have been possible without the support of the law school communities at Yale and Georgetown (where I taught from 1987-98 under the protection of a similar non-discrimination policy). I do not think it unfair to say that the nation's understanding of the historical as well as normative context of consensual sodomy laws has been deeply enriched as a result of the intellectual as well as community commitment to equality that has been the hallmark of the Yale Law School.

Application of Yale Law's Non-Discrimination Policy to Legal Employers Recruiting At Yale

23. The Career Development Office at Yale Law (CDO) assists students and graduates in identifying career objectives and obtaining employment that meets those objectives. Its approach is to assist in self-assessment and in defining career goals, as well as in teaching students and graduates the career skills that will serve them well in the practice of law. CDO is staffed by counselors with expertise in both the public and private sectors, as well as in judicial clerkships and fellowships. Through CDO, students locate summer and full-time positions with law firms, public interest organizations, government agencies, law schools, legal services organizations, corporations, fellowship programs, judges, and others.

24. Every year, CDO sponsors a Fall Interview Program (or "FIP") for second- and third-year students and a Spring Interview Program (or "SIP") for first-years. In the fall, some 250 legal employers from all over the country and abroad register to interview students for summer and permanent positions. Another 30 employers participate in the spring program. The two formal programs are now held off-campus. Yale decided in 1982 that the presence of many employers on campus disrupted the educational environment. Students and employers who participate in the programs meet in rooms at a nearby Holiday Inn, a walk of about five to seven minutes from the Law School campus. In advance of the program, students sign up for interviews with employers of their choice. The CDO transmits the resumes of the students to each employer. Students may also sign up for any empty interview slots. Employers must take the initiative in reserving interview rooms, and make sleeping arrangements directly with the Holiday Inn. CDO does not make these arrangements.

25. Beyond these formal programs, employers have any number of vehicles by which to recruit Yale Law students-whether or not the Law School approves of the employers' hiring practices:3

o Employers who opt not to send a recruiter to New Haven can send targeted mailings to students.

o Employers can request a Yale Law School Facebook to determine which students it wishes to contact, then look up their email addresses on the Yale University website: www.yale.edu/yaleinfo.

o Legal employers can encourage their Yale Law School graduates to serve as mentors to student organizations or to students seeking career advice by joining the Alumni Mentoring Network.

o Yale participates in the Equal Justice Works in Washington, DC, every October, and co-sponsors the Public Interest & Public Service Legal Career Symposium in New York City every February.

o Yale Law School participates in PSLawNet, a database of public interest organizations, government agencies, judges and private firms with public interest or significant pro-bono practices. PSLawNet helps students throughout the country find volunteer public interest positions.

In short, any employers interested in connecting with Yale Law students have any number of easy and effective vehicles at their disposal.

Yale Law's Non-Discrimination Recruiting Policy

26. Based upon the Policy as amended in 1978, Yale Law has adopted a firm, unshakable non-discrimination recruiting policy (the "Recruiting Policy"). An employer who discriminates may pursue any of the foregoing alternate recruiting vehicles, but the CDO will not affirmatively help them. Pursuant to Faculty policy, the CDO requires each employer using its services to sign a non-discrimination statement, which now reads:

Yale Law School Nondiscrimination Form

I, [Name of Representative], an authorized representative of [Name of Employer], affirm that said employer is aware of and complies with Yale Law School's nondiscrimination policy, as stated below:

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, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients.

(A true and correct copy of the form is attached as Exhibit 3.) That means that employers who do not sign the statement (or signify their agreement to its terms) may not participate in the fall or spring programs under the CDO's auspices and may n