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As a coalition of law schools prepares to battle the Department of Defense in a case before the U.S. Supreme Court next term involving a law that requires the accommodation of military recruiters on their campuses, a group of nearly 100 law professors and students have filed a brief siding with the government. Professors and students from Harvard Law School, Stanford Law School, University of California, Berkeley School of Law and other institutions have submitted a friend-of-the-court brief to the Supreme Court supporting U.S. Secretary of Defense Donald Rumsfeld and the defense department in a case brought by the Forum for Academic and Institutional Rights (FAIR). A growing schism The amicus brief represents a growing schism among law school faculties divided about the military’s “Don’t Ask Don’t Tell” sexual orientation policy and its role in recruiting law school students on their campuses. “There are large numbers of students and faculty members at other law schools who disagree with the forum,” said Joseph Zengerle, a George Mason University School of Law professor who is of counsel for the amicus parties. FAIR’s lawsuit, filed in September 2003, challenges the so-called Solomon Amendment, a federal law that requires schools to treat military recruiters the same way they accommodate other recruiters, such as law firms, or risk losing federal funding to their entire universities. Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152. FAIR argues that the military’s policy of prohibiting openly gay people from joining runs afoul of their own policies, as set forth by the Association of American Law Schools, which prohibit discrimination based on sexual orientation. FAIR alleges that accommodating military recruiters violates the school’s First Amendment rights to freedom of speech and association. Joshua Rosenkranz, an attorney with Heller Ehrman who is representing FAIR, said the amicus brief will not hurt his client’s case. “The fact that there may be a handful of law professors who believe that we’re wrong on the constitutional claim does not, in any way, undermine the strength of our position,” he said. FAIR is made up of 30 law schools, including New York University School of Law, Stanford and Georgetown University Law Center. Another plaintiff in the case is the Society of American Law Teachers, an association of professors throughout the country. Many of the law professors signing the amicus brief come from George Mason University, including its dean, Daniel Polsby, who also serves as of counsel for the amicus parties. Other professors signing the brief are from Northwestern University School of Law, U.C. Berkeley, University of Virginia School of Law, George Washington University School of Law and more. Harvard and others weigh in In addition, more than 50 students from Harvard, Georgetown, Stanford, University of Southern California and many others also signed the brief. Law students have signed on to other amicus briefs filed in support of the military. FAIR’s brief is due on Sept. 21. Oral arguments before the high court are slated for December. Last year, the 3d U.S. Circuit Court of Appeals found that the district court should have enjoined enforcement of the amendment, saying the suit was likely to succeed on constitutional grounds. Zengerle, who said that the military’s stance on gays “ought to be revisited,” added that the proper avenue for addressing the “Don’t Ask, Don’t Tell” policy is with Congress, not with the military. “We’re blaming the warriors,” he said.

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