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A group of 21 law professors and six students from the University of Pennsylvania Law School filed suit in U.S. District Court Wednesday claiming that the Defense Department threatened to cut off more than $500 million in federal funding to the university if the law school did not begin treating military recruiters the same as other employers. The suit was filed by attorneys David Rudovsky of Kairys Rudovsky Epstein & Messing, along with attorneys Richard L. Berkman, Juliet Sarkessian and Tracy R. Gainor of Dechert and Penn Law in-house counsel Kermit Roosevelt. The suit, Burbank v. Rumsfeld, has been assigned to Senior U.S. District Judge John P. Fullam of the Eastern District of Pennsylvania. In the suit, the students and professors — about half the law school’s faculty — claim that the military’s recent insistence on strict enforcement of the Solomon Amendment has forced the law school to abandon its policy of prohibiting discrimination against gays and lesbians. The Solomon Amendment, passed in 1996, requires that all institutes of higher education that receive federal funding must allow military recruiters on campus. The suit says Penn Law School established procedures in 1998 designed to comply with the law while at the same time maintaining its anti-discrimination policies. Military recruiters were allowed to contact and interview law students, the suit says, but without direct assistance from the law school. Under the policy, only those employers who promised to honor the law school’s anti-discrimination policy were permitted to recruit directly through the law school’s office of career planning and placement. By contrast, military recruiters were referred to the university’s office of career services, which would then notify law students of the dates that military recruiters would be on campus. The suit says the policy worked for five years, and that military recruiters had “full access to all students.” “The only difference between the procedures for employers who are in compliance with the law school’s anti-discrimination policy and those applicable to [the military] … is the identity of the individuals in the university who act as intermediaries between employer/recruiters and the students,” the suit says. But in January 2003, the suit says, Col. Daniel B. Fincher of the Air Force notified the university by letter that the law school was not in compliance with the law. “I understand that military recruiting personnel have been inappropriately limited in their ability to recruit or have been refused student recruiting information,” Fincher wrote. Fincher’s letter closed by saying that a determination that the university was not in compliance with the law would result in a cut-off of all federal funding. In March, the suit says, the university gave in to the military’s demands. In a letter to Fincher, the university said it believed that the law school had already afforded military recruiters access to students that was “equal in quality and scope to that afforded other employers.” The letter went on to say: “We now understand … that the military is taking the position that ‘equal’ access means ‘identical’ access. We also understand that the military is unwilling to consider any different view.” The letter said the university strongly disagreed with the military’s reading of the Solomon Amendment, but that it had decided to abandon enforcement of its anti-discrimination policy because “we cannot put the approximately $500 million of federal funds received annually by the university at risk — and to litigate this issue would have just that effect.” The university said in the letter that it took the step “with serious reluctance,” but that “the Air Force has given us no other option but to change our enforcement policy.” Now, in a federal lawsuit, professors and students are asking the court to declare either that the university was in compliance with the law, or that the law is unconstitutional. Professor Stephen Burbank, the lead plaintiff, said the suit was filed by individual professors and students because the law school itself is an unincorporated part of the university that cannot bring lawsuits. Burbank said the first goal of the suit was to secure a ruling that the university has never violated the Solomon Amendment. Only if that effort fails, he said, would the suit then become a challenge to the Solomon Amendment on First Amendment grounds. Burbank said the military’s “current interpretation” of the Solomon Amendment “serves no legitimate governmental interest.” The military’s recent actions, he said, coerced the law school to abandon its non-discrimination policy, which, he said, was “a statement of belief in the dignity of all persons.” Now that the university has caved in to the military’s demands, Burbank said, “students may justifiably question the institution’s commitment to non-discrimination when they observe it violating its own policy.” In addition to Burbank, the professors joining the suit as plaintiffs include: Anita L. Allen-Castellito, Regina Austin, C. Edwin Baker, Eric Feldman, Douglas Frenkel, Frank Goodman, Seth F. Kreimer, Anne E. Kringel, Friedrich Kubler, Alan M. Lerner, Howard Lesnick, Bruce H. Mann, Stephen Morse, Wendell Prichett, Edward Rubin, Louis S. Rulli, Catherine T. Struve, Dina Lynn Schlossberg, Kim Lane Scheppele and Clyde W. Summers, all full-time members of the law school’s faculty.

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