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Is the federal government allowed to pull funding from law schools that refuse to promote military recruiting on campus in protest of the armed forces’ policy of banning gays? In a 2004 opinion, the U.S. Court of Appeals for the 3rd Circuit said no. The Bush administration has appealed that decision in Rumsfeld v. Forum for Academic and Institutional Rights to the Supreme Court, which will consider during its April 29 conference whether to hear the case. The case centers on the legality of the Solomon Amendment, which conditions federal funding to universities on their giving military recruiters full access to campuses. The 1994 law, named after chief sponsor then-Rep. Gerald Solomon (R-N.Y.), has been controversial because it conflicts with many law schools’ policies against discrimination based on sexual orientation. Federal law bans gays from serving in the armed forces. Until 2001, the government provided the funding as long as military recruiters had some access to campuses. Many law schools accepted this arrangement, but they did not promote the military recruiters in the same way as they did other employers. For example, Harvard Law School “allowed military recruiters on campus to recruit at the offices of its Veterans Association but did not volunteer its placement personnel to arrange interviews,” according to court papers. After 9/11, the Defense Department demanded equal access and threatened to pull federal funding from law schools if it didn’t get it. Law schools receive millions of dollars in federal aid each year that is used to fund a broad range of programs. In summer 2003, Congress amended the Solomon Amendment to require equal access. That fall, the Forum for Academic and Institutional Rights, an association of law schools and faculty, and the Society of American Law Teachers, as well as several individual law students, professors, and other organizations, sued the Defense Department and other federal agencies, asking a federal court to enjoin enforcement of the amendment. The groups argued that the amendment violated their First Amendment rights. “Most schools are implicated because they receive federal funds that fall under the categories of funding that the Solomon Amendment threatens to pull, some of them upwards to hundreds of millions of dollars,” says Sharon Frase, an associate at Heller Ehrman White & McAullife who represents law schools and professors. The District Court refused to enjoin the amendment. In a 2-1 decision in 2004, the 3rd Circuit overturned the District Court. Ironically, the 3rd Circuit opinion, written by Judge Thomas Ambro, relied heavily on the 2000 Supreme Court decision in Boy Scouts of America v. Dale. That 5-4 decision, written by Chief Justice William Rehnquist, condoned the Boy Scouts’ refusal to accept openly gay James Dale as an assistant scoutmaster. Forcing the group to accept a gay scoutmaster would violate its right to expressive association, the Supreme Court stated. The 3rd Circuit ruled that law schools were also expressive associations and could not be forced to advocate the military’s policy. The court applied strict scrutiny, the most difficult standard for the government to overcome, in its analysis of the Solomon Amendment and said that the regulation was not narrowly tailored to promote a compelling governmental interest. The Bush administration says the decision could “undermine military recruitment in a time of war.” Acting Solicitor General Paul Clement writes in the government’s brief that accepting military recruiters does not interfere with law schools’ expressive association. He argues that the case differs from Dale in that “[r]ecruiters are not a part of the institution itself and do not become members through their recruiting activities.” Clement claims recruiters are mouthpieces for their employers, not the schools, unlike the scoutmaster in Dale, who represented the Boy Scouts. Additionally, Clement says law schools remain free to protest the military’s message as long as they give recruiters equal access. If law schools choose not to allow equal access, Clement says, they simply forgo funding. Rep. Richard Pombo (R-Calif.), several law students, and the Mountain States Legal Foundation have filed an amicus brief supporting the government, arguing that the Court should defer to Congress. The Forum for Academic and Institutional Rights argues in its brief that the government “cannot attach strings to a benefit to ‘produce a result which [it] could not command directly,’ ” writes E. Joshua Rosenkranz, counsel of record for the forum and a partner at Heller Ehrman. He says that when law schools violate the equal access rule, the government denies funding not only to the law schools but also to the entire university. Requiring equal access, he adds, forces law schools to “ propagate, accommodate, [or] subsidize an unwanted message.” OTHER CASES UP FOR REVIEW • Columbia River Correctional Institute v. Phiffer, No. 04-947: Where states accept federal funds, whether a law abolishing states’ immunity from private suit under Title II of the Americans With Disabilities Act and the Rehabilitation Act violates Section 5 of the 14th Amendment. For waiver to be valid, must states knowingly and voluntarily agree to waiver when accepting federal funds? • UNUM Life Insurance Co. v. Fought, No. 04-1000: Whether 10th Circuit violated the Employee Retirement Income Security Act when it ruled that plan administrator’s conflict of interest, such as serving as both administrator and payor of claims, is a factor in determining if benefits decision was appropriate. • Safe Air for Everyone v. Meyer, No. 04-1055: Whether grass residue remaining after bluegrass harvest involving field burning is “discarded,” constituting “solid waste” under the Resource Conservation and Recovery Act. • Michigan High School Athletic Association Inc. v. Communities of Equity, et al., No. 04-1021: Whether high school athletic association’s scheduling of girls’ sporting events in nontraditional seasons while no boys’ sports were similarly scheduled is unconstitutional gender classification under the equal protection clause. Whether plaintiffs’ equal protection claim is allowed under Title IX. • Citizens Financial Group Inc. v. Citizens National Bank of Evan City, No. 04-1156: Whether trademark infringement constitutes irreparable injury and, if so, whether court may direct infringing party to cease trademark use in noninfringer’s marketing area. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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