HARASSMENT POLICY OF NEW YORK LAW SCHOOL
Discrimination and harassment interfere with the educational purpose of New York Law School and negatively affect all members of the Law School community. Faculty, staff, and students have a right to be free from discrimination and harassment based on race, color, ethnicity, ancestry, citizenship, religion, sex, pregnancy, sexual orientation, gender identity, gender expression, national origin, age, disability, AIDS, predisposing genetic characteristics, marital or parental status, military status, domestic violence victim status, or any other classification protected by local, state, or federal law ("Protected Classification"). Discrimination or harassment directed at any member of the Law School community within the context of the Law School or Law School-sponsored activities will not be permitted, and complaints will be investigated promptly and thoroughly. New York Law School is proud of its policy of maintaining a work, academic and residential environment that encourages tolerance and respect for the dignity of each individual.
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New York Law School has for many years had a Human Rights Policy barring employers who practice discrimination in employment from using the services of theSchool’s Office of Career Services. As detailed below, this policy has in the past been applied to bar military recruiters from campus because of the military’s employment policies that discriminate on the basis of sexual orientation. Following the recent Supreme Court decision upholding the constitutionality of the Solomon Amendment, a federal appropriations provision threatening loss of federal funds to schools that exclude military recruiters, the faculty decided to allow the military on campus for recruitment purposes, while still encouraging and supporting efforts in the law school community to express disapproval of sexual orientation discrimination in general and the military’s policy in particular. New York Law School continues to oppose the practice of discrimination in employment by all employers including discrimination on the basis of sexual orientation.
During the fall 1983 semester, the faculty voted to add “sexual orientation” to the School’s Human Rights Policy listing forbidden grounds for discrimination in our programs and employment practices, and specified that the policy would apply in the Career Services Office. The Board of Trustees quickly approved the faculty vote. Pursuant to that policy, representatives of the Defense Department were denied the opportunity to recruit on campus, because at that time military regulations prohibited lesbians or gay men from working for the Defense Department in any capacity. New York Law School was one of a relatively small number of law schools to enforce such a non-discrimination policy. New York Law School continues to oppose the practice of discrimination in employment by all employers including discrimination on the basis of sexual orientation.
The fall 1983 vote, although overwhelming, was not unanimous. Although there has been a broad consensus that lesbians and gay men should be allowed to serve in the military without discrimination, there has always been a diversity of views among the faculty about the wisdom of excluding military recruiters from the law school, and the potential impact such a ban might have on the career opportunities of New York Law School students. Some Faculty members have consistently opposed the ban because it insulates the military from the very “liberal arts” institutions whose values would otherwise help counter homophobia and also help continue to ensure civilian control over the military. Other members of the faculty have argued that banning military recruiters has minimal, if any, impact in changing the military policy, while possibly alienating potential employers of our students. Others have insisted that an institution that proclaims its commitment to the principle of non-discrimination should not be making exceptions, and that all New York Law School students should be able to participate in any program on campus for which they are qualified, without regard to such factors as sexual orientation.
At its annual meeting in 1990, the House of Representatives of the Association of American Law Schools, of which New York Law School is a member, amended the Association’s membership rules to require that member schools adopt policies banning sexual orientation discrimination, and apply those policies in their placement facilities. As a result, most of the nation’s law schools joined New York Law School in excluding Defense Department recruiters. Several years later, the House of Delegates of the American Bar Association, which accredits law schools, voted to amend the accreditation requirements so that accredited schools would be required to ban sexual orientation discrimination, but the A.B.A. requirements make an explicit exception for the military.
In 1993, reacting to a presidential campaign pledge by President Bill Clinton to end the ban on military service by gay people, Congress adopted, for the first time, a statutory policy, codified at 10 U.S.C. section 654. The policy declared that homosexuality was incompatible with military service, and required the discharge of any service member whose conduct or speech indicated that they were gay. This so-called “don’t ask, don’t tell” policy was presented as a compromise, under which gay people could serve in the military if they refrained from any speech or conduct that would reveal their sexual orientation to others. Believing that this policy continued to be discriminatory on the basis of sexual orientation, New York Law School continued to deny military recruiters the use of our Career Services facilities.
In 1994, reacting to the widespread exclusion of military recruiters from law schools and other institutions of higher education, Congress adopted the first version of the “Solomon Amendment,” a provision of the Defense Department Appropriations Bill. The Solomon Amendment required the Defense Department to refrain from spending any money authorized by the Defense appropriations bill to assist institutions of higher education that excluded military recruiters. The Defense Department, seeking to avoid confrontations with major research universities that barred military recruiters at their law schools while performing substantial research or training activities for the military elsewhere in the university, construed the Solomon Amendment narrowly as applicable only to the unit of an institution that was barring military recruiters. Because law schools generally receive little or no Defense Department money, this first version of the Solomon Amendment did not induce many schools to admit military recruiters.
However, Congress then revised the Solomon Amendment to apply to appropriations for a wider array of federal programs, including student financial assistance programs, as a result of which New York Law School and most other law schools rescinded their bans on military recruiters later in the 1990s because many of our students relied on such federal assistance to be able to attend law school. The Association of American Law Schools modified its policy as well, providing that member schools should take steps to “ameliorate” the impact on their law school communities of having to allow a discriminatory employer to use their placement facilities. Gay rights activists in the law school community brought this situation to the attention of friendly members of Congress, who successfully amended the Solomon Amendment to shelter all student financial aid grants from its operation, leading many law schools, including New York Law School, to reinstate the ban on military recruiters. As before, the faculty discussion on whether to reinstate the ban revealed substantial diversity of views on the faculty about the wisdom of the action.
The change of federal administrations with the inauguration of President George W. Bush in January 2001 led to policy changes. The Defense Department abandoned its practice of interpreting the Solomon Amendment narrowly, and announced new regulations under which a law school’s ban on military recruiters would subject the entire university to the loss of federal financial assistance. Furthermore, the regulations were amended to require that military recruiters be given “equal access” with all other job recruiters at law school placement facilities. Shortly after these policies were adopted, the terrorist attacks on the World Trade Center on September 11, 2001, placed New York Law School in a particularly sensitive position on the issue of military recruitment, situated as we are just blocks from “Ground Zero.” A decision was madeto allow military recruiters to come to the school that year.
The new policies announced by the Defense Department in 2001 led most law schools to rescind their bans on military recruitment. Only a few independent law schools that did not have federal money at stake continued to apply their non-discrimination policies to the military. Faculty members and administrators who were dissatisfied with this situation formed the Forum for Academic and Institution Rights (FAIR) for the specific purpose of litigating the question whether the Solomon Amendment, as currently applied, violates the constitutional rights of law schools. New York Law School became a member of FAIR, and was one of a handful of law school members that agreed to be publicly identified as such. (Some schools preferred to be anonymous to avoid endangering federal money going to other units of their universities.)
When the U.S. Court of Appeals for the 3rd Circuit held in FAIR v. Rumsfeld, 390 F.3d 219 (3rd Cir., 2004), that the Solomon Amendment violated the First Amendment free speech and associational rights of law schools, New York Law School reinstated its ban on military recruiters. The faculty debated what course to take and concluded by majority vote, with significant dissent, to enforce our non-discrimination policy pending the outcome of the government’s appeal.
The government successfully appealed the 3rd Circuit’s ruling to the Supreme Court, which held unanimously in Rumsfeld v. FAIR, 126 S.Ct. 1297 (March 6, 2006), that the Solomon Amendment is constitutional. Specifically, the Court said that Congress could directly require law schools to allow military recruiters on campus, as an aspect of its enumerated power under Article I of the Constitution to raise armies, in light of which Congress surely had the less intrusive authority to condition federal financial assistance on law schools cooperating in the military recruitment process. The Court also ruled that recruitment is not speech, that banning recruiters is not speech, and that the law schools’ expressive associational rights are not unconstitutionally burdened by the occasional presence of a military recruiter on campus. The Court stated that nothing in the Solomon Amendment would require law schools to take any particular position on the question of whether gay people should be allowed to serve in the military, and that nothing would preclude law schools from stating their opposition to the current policies.
In light of the Court’s decision, the faculty has voted to allow military recruitment to resume on campus, accompanied by a firm statement of the School’s Human Rights Policy and disagreement with the military “don’t ask, don’t tell” policy. (The “don’t ask, don’t tell” policy has also been the subject of repeated challenge in the courts, but so far has survived all judicial review.) The Supreme Court’s decision makes clear that Congress has the power to compel access for military recruiters. Under the Solomon Amendment, all but a handful of law schools are compelled by circumstances to allow military recruiters on campus, due to the threat of losing substantial federal financial assistance – in some cases of major research universities, hundreds of millions of dollars a year. As a result, further exclusion of the military by the handful of law schools that do not have federal grants at stake, including New York Law School, is unlikely to have any significant impact in changing the military policy. The faculty discussion leading to the vote showed that most faculty members continue to disagree with the “don’t ask, don’t tell” policy, and that the faculty supports efforts to educate students about this issue and express the School’s collective disapproval of the policy, especially when military recruiters are present on campus. To this end, members of the faculty and administration were urged to support efforts to organize educational events and protests around this issue when military recruiters return to the law school.