Burt v. Rumsfeld, 322 F. Supp. 2d 189 (D. Conn. 2004); Burt v. Gates, 502 F.3d 183 (2d Cir. 2007)

On January 31, 2005, the Connecticut District Court issued a decision granting the faculty plaintiffs' request for summary judgment and criticizing the government for its "refusal to come forward with information within its control" and "denial of facts without supporting evidence." By threatening to cut off federal funding to the University unless it allowed military recruiters to participate in recruiting, the court concluded, the Solomon Amendment imposed unconstitutional conditions upon the receipt of federal funds.

The district court found the "condition imposed by the Solomon Amendment [to be] in [no] way related…to the purposes for which the federal funds have been given to Yale," and thus dismissed the Department of Defense's argument that such restrictions were allowed under the Spending Clause of the Constitution. Instead, the court concluded that the Solomon Amendment interfered with the faculty members' First Amendment right to expression by compelling them to allow military recruiters to participate in school sponsored programs, and thus "coerced [them] into assisting DoD in sending its message." The court also held that the Solomon Amendment violates faculty members' First Amendment freedom of association rights by blocking them from "using their freedom to associate, or disassociate, [as a means of] inculcat[ing] their values in their students and … propagat[ing] publicly their beliefs regarding discrimination."

Finally, the court declined to find the new substantive due process right of "educational autonomy" advocated by the faculty. (The faculty had put forth the novel argument that the "right to ban discriminatory conduct from all of the Law School 's activities in order to protect their students and to create the environment necessary to carry out the Faculty Members' educational mission" was a substantive due process right under the Fifth Amendment). Instead, however, the court noted that such a claim was "functionally a First Amendment academic freedom claim," and affirmed the right of First Amendment academic freedom by noting that where "a particular Amendment [already] provides an explicit textual source of constitutional protection against a particular sort of government behavior," a more generalized notion of substantive due process should not be substituted for that Amendment. Read the decision (part 1, part 2) (pdf). Read the AAUP's amicus brief (pdf).

Status: In April 2005, Defendant Donald Rumsfeld filed an appeal with the Second Circuit Court of Appeals, which was suspended pending the Supreme Court’s decision in FAIR v. Rumsfeld. On September 17, 2007, the Second Circuit issued an opinion (now titled Burt v. Gates, because of Secretary Rumsfeld’s departure as Secretary of Defense), in which the federal appeals court reversed the district court’s decision.  The appeals court concluded both that the Supreme Court had “almost certainly” rejected the academic freedom argument in Rumsfeld v. FAIR and that, in any event, the academic freedom argument lacked merit because the “relationship between barring military recruiters and the free flow of ideas” was too “attenuated.”