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WASHINGTON — The U.S. Supreme Court agreed on Monday to consider whether law schools that refuse to allow military recruiters on campus because of the military’s stance on gays could suffer the loss of federal funds. By granting certiorari in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), the justices will revisit a 2004 decision by the Third Circuit U.S. Court of Appeals that allowed the schools to restrict, without taking a financial hit, the presence of military recruiters on campus because the military’s “Don’t Ask, Don’t Tell” policy violated the schools’ policies against discrimination based on sexual orientation. The case centers on the legality of the Solomon Amendment, a 1994 law named after then-Rep. Gerald Solomon, R-N.Y, that conditions federal funds to universities on their giving military recruiters the same access to their campuses that other employers receive. Until 2001, the government continued to provide the funds as long as military recruiters were given some access to campuses. Many law schools accepted this arrangement, but did not promote the military recruiters in the same way as they did other employers. But after the terrorist attacks of Sept. 11, 2001, the Defense Department demanded equal access and threatened to pull federal funding from law schools if it didn’t obtain it. Law schools receive millions of dollars annually in federal aid that is used to fund a broad range of programs. “The Solomon Amendment forces the law school to violate its own policy and actively support military recruiters who come onto campus to engage in the very discriminatory hiring practices that the law school condemns,” wrote E. Joshua Rosenkranz, a partner at Heller Ehrman White & McAuliffe in New York and counsel of record for the coalition of law schools and law school professors that form FAIR. In its brief, the government argued that “[e]ffective recruitment is essential to sustain an all-volunteer military, particularly in a time of war.” Wrote acting Solicitor General Paul Clement: “If institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding. Neither the association, nor the receipt of federal funds, nor the equal access policy is compelled.” The court will hear the case in its upcoming fall term. No specific date has been set for the arguments. As this case wound its way through the lower courts, a number of judges, especially in the Third Circuit, recused themselves from the proceedings. Lawyers involved in the case speculated that the recusals stemmed from judges having a connection to one of the 31 law schools and law school faculties that made up the FAIR coalition. However, despite the fact that four high court justices have a personal or financial connection to the law schools in the coalition, none have recused themselves. Bethany Broida is an assistant editor at Legal Times, a Recorder affiliate. Intern Marya Lucas contributed to this report.

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