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Law schools must open their doors to military recruiters, even if the U.S. Department of Defense’s refusal to admit homosexuals to military service offends the schools’ anti-discrimination policies, a federal judge has ruled. But E. Joshua Rosenkranz, who handled the case against the department, sees reason for optimism in the details of the recent decision. Judge John C. Lifland of the District of New Jersey upheld the constitutionality of the so-called Solomon Amendment, a federal statute that authorizes the Department of Defense to cut off federal funding to schools that prevent on-campus military recruiting. Forum for Academic and Institutional Rights Inc. v. Rumsfeld, No. 03-4433. Lifland also took the government to task for pushing the Solomon Amendment too far by demanding not merely access, but treatment equal to that accorded to other job recruiters. “The decision makes clear that law schools need not roll out the red carpet,” said Rosenkranz of the New York office of Heller Ehrman White & McAuliffe. According to Lifland’s decision, many law schools had for years complied with the bare terms of the Solomon Amendment, but still expressed their disapproval of the department’s policies by measures such as refusing to pass out its promotional material or excluding its recruiters from job fairs. That changed in 2001, Lifland said, when the department began to demand equal access, at pain of loss of funding. “[T]he Court has grave reservations as to whether such an interpretation is sustainable as a matter of statutory construction,” he wrote. Challenges in pipeline Georgetown University Law Center Professor Chai R. Feldblum, who tracks Solomon Amendment litigation on her Web site, www.law.georgetown.edu/solomon, said that Lifland’s statutory ruling bodes well for three similar federal court challenges to the amendment by the Yale and University of Pennsylvania law faculties and students at Yale Law School. Rosenkranz’s lead client is the Forum for Academic and Institutional Rights (FAIR), a coalition of law schools and faculties that was organized specifically to challenge the Solomon Amendment. Rosenkranz said he intends to challenge Lifland’s constitutional rulings to the 3d U.S. Circuit Court of Appeals. Lifland failed to see the danger of the Solomon Amendment to academic freedom, Rosenkranz said, because he treated the amendment as being primarily a limitation on conduct rather than speech. “But the amendment says that law schools have to admit military personnel to campus for the purpose of issuing a recruiting message,” Rosenkranz said. “They’re trying to shoehorn too much into free speech,” said Professor Eugene Kontorovich of George Mason University School of Law. Nothing stands in the way of law faculties and administrators from speaking out against the department’s policies, in speeches or letters in student mailboxes, for instance, he said. Kontorovich defended the Defense Department’s unsuccessful motion that FAIR be refused standing if it did not name its members, which it refuses to do. Kontorovich said that advocacy groups are typically given standing when they speak for voiceless interests like the environment or the homeless. “But here the primarily injured parties are law schools,” he said. Young’s e-mail address is [email protected].

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