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A flurry of lawsuits has been filed in recent months challenging the constitutionality of the Solomon Amendment, the federal law that strips federal funding from colleges and universities that prohibit on-campus military recruiting. A consortium of anonymous law schools and law professors has filed suit in the U.S. District Court for the District of New Jersey. Law professors and law students at the University of Pennsylvania have sued in the U.S. District Court for the Eastern District of Pennsylvania. Yale Law School professors have brought suit in the U.S. District Court for the District of Connecticut. And two law student organizations at Yale also have filed suit in the federal court near the New Haven campus. The principal claim in the various suits is that the Solomon Amendment violates First Amendment academic freedom rights. The suits have three things in common: promotion of a left-wing political agenda, little chance of success and indifference to law students who wish to serve their country by becoming military lawyers. It’s no secret that the vast majority of legal academics are on the far left of the political spectrum. John O. McGinnis, a law professor at Northwestern University, a notable exception to this state of affairs, captured the point well in a 1999 article on the Clinton impeachment imbroglio: “I was not surprised that my colleagues almost universally opposed the impeachment of the president. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our universities today are the Democratic Party at play.” It matters not a whit that the focus of the lawsuits in question-the military’s “don’t ask, don’t tell” policy on homosexuality-was authored by that famous Democrat, Bill Clinton. Law professors have been criticizing the policy, which permits homosexuals to serve in the military as long as they keep their private lives private, from the day it was enacted. Indeed, law schools across the country banned recruiters from the judge advocate general’s program from recruiting on their campuses because they claimed don’t ask, don’t tell violated their respective anti-discrimination policies. All that changed when the Bush administration started to enforce the Solomon Amendment. A lot of money is at stake-more than $500 million for the University of Pennsylvania alone-which is why the schools themselves are suing anonymously (if at all) and why they have permitted the military to recruit on campus pending the outcome of the litigation. Inauspicious start The early signs are that the lawsuits will fail. One already has. On Nov. 5, U.S. District Judge John C. Lifland ruled for the Bush administration in the case involving the consortium of anonymous law schools and law professors. In a thorough and thoughtful opinion, Lifland denied the plaintiffs’ motion for a preliminary injunction enjoining the enforcement of the Solomon Amendment primarily on the ground that the amendment’s requirement that the military be allowed to recruit on campus does not in any way suggest to anyone-especially to law students-that the law schools and law professors in question support what they claim is the military’s discriminatory policy. Lifland wrote: “The record demonstrates that law school administrators, faculty, and students have all openly expressed their disapproval of the military’s . . . policy through various channels of communication. Some law schools have posted ameliorative statements throughout the school; law faculty and student bar resolutions have openly condemned the military’s policy; and faculty and students have held demonstrations protesting the military’s presence on campus.” In short, Lifland concluded, the legal academy’s opposition to don’t ask, don’t tell couldn’t be clearer. Critics of these lawsuits have stressed how unseemly it is for the legal academy to attempt to advance its political agenda on homosexuality at this moment in U.S. history, when an average of one serviceman a day is dying in Iraq. I agree. However, what has gone unsaid to date is this: It’s easy for law professors and law students at elite law schools like Yale and Penn to want to ban the military from recruiting on their campuses. The world is their oyster, as the saying goes. But what about students at nonelite law schools who don’t have dozens of high-paying law firm jobs from which to choose? And what about law students at any school who believe that serving one’s country as a military lawyer is an honorable calling? No one is forcing law students or law professors anywhere-including at Yale or Penn-to serve their country. After all, the Solomon Amendment doesn’t re-institute the draft. If law students at Yale or Penn-or anywhere else, for that matter-don’t want to interview for judge advocate general positions they don’t have to. And if law students and law professors wish to protest the military’s don’t ask, don’t tell policy-or any other policy they don’t like-they are free to do so. But what they aren’t free to do is make others pay the price for the promotion of their political agenda. Law school should be about teaching and learning the law, not about playing politics. Scott D. Gerber is a law professor at Ohio Northern University.

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