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The controversy over the military’s “don’t ask, don’t tell” policy moved to a new battleground last Friday, as a federal judge in Newark heard a challenge to a U.S. law that cuts off funds to schools that bar military recruiters. The plaintiffs in Forum for Academic and Institutional Rights v. Rumsfeld, 03 Civ. 4433, asked for a preliminary injunction against enforcement of the law. They argued that immediate relief is necessary in light of the imminent fall recruiting season. The defense argued for dismissal on the ground that the plaintiffs lack standing. The Forum for Academic and Institutional Rights is an association of unnamed law schools. While the plaintiffs say free speech is at issue, the defendants say it is an exercise of spending power. U.S. District Judge John Lifland said he would decide the motions soon. At the heart of the dispute is the 1995 Solomon amendment, 10 U.S.C. 983(b). It forbids the Departments of Defense, Education, Labor, Transportation, Health and Human Services, and Homeland Security from providing funds to an institution of higher learning “with a policy or practice … that prohibits, or in effect prevents” military recruiters from gaining access to the campus or students. Student aid under the federal work-study program, supplemental educational opportunity grant program and Perkins loans fall under the law. E. Joshua Rosenkranz, who represents the plaintiffs, tried to counter the government’s argument that FAIR could not assert the rights of its unnamed member law schools, who refuse to be identified for fear of retaliation. He announced that Golden Gate University Law School in San Francisco agreed to be identified as a forum member. Golden Gate is one of two dozen law schools threatened with loss of funds if it did not suspend its nondiscrimination policy to allow access to military recruiters. The school was prepared to state it would reactivate its policy of not discriminating based on sexual orientation if the threat were lifted, said Rosenkranz, a partner with Heller Ehrman White & McAuliffe in New York. Still, Mark Quinlivan, senior trial counsel with the Department of Justice and attorney for Secretary of Defense Donald Rumsfeld and the other defendants, insisted that FAIR must identify its members. Rosenkranz responded that FAIR was formed because “law schools did not feel they could jeopardize their own funding.” At the close of argument, he offered to provide a list of members for in camera review, and Lifland took him up on it. Rosenkranz urged that faculty and students have standing because, as a result of government intervention, they have been deprived of the open academic environment promised by school policy. He cited the 1981 decision by the 3rd U.S. Circuit Court of Appeals in New Jersey-Philadelphia Presbytery v. New Jersey State Board, 654 F.2d 868. Quinlivan told Lifland it was the plaintiffs’ burden to establish standing based on “concrete, individualized harm.” Only educational institutions, not professors or students or groups of them, can claim harm from loss of federal funding, he said. Quinlivan also raised questions about whether a law school that is part of a larger university can raise the challenge alone when the entire university stands to lose funding. The complaint alleges that the decision by the Department of Defense in 2000 to deny funds to an entire university, rather than just a law school that refuses to comply, is a misapplication of the law. The plaintiffs also contend that the military’s recent insistence on not just access but parity of treatment with employers who do not discriminate exceeds the law’s requirements. Schools that resorted to compromises, like using non-law school personnel to arrange interviews at off campus locations, have recently come under fire for not providing parity, even though, plaintiffs allege, the different treatment did not impair hiring efforts. Rosenkranz argued that free speech is implicated. The threat of Solomon enforcement not only interferes with schools’ freedom to express their own anti-bias views but also compels them to endorse the military’s message — “we want you only if you’re not gay” — by hosting its recruiters, arranging their interviews and disseminating their literature, he said. “This case is ultimately about whether law schools have the ability to shape their own environment and to teach by word and deed.” Quinlivan disagreed. The case involves the spending clause case, not speech, he argued. Law schools retain the right “to decide whether they want to accept federal funds or whether to discriminate against military recruiters is more important to their core mission,” he argued. Quinlivan said there is a “panoply of First Amendment activity in opposition” to military recruiting at law schools — including student protests, official statements and sit-ins — that show speech is not being suppressed. Rosenkranz answered that the legislative history makes it clear the law was aimed at dissenting campuses. He describes an incident where, though not a single student signed up to interview, interviewers showed up anyway and sat in an empty room all day, showing that their intent was to make a statement, not to hire, said Rosenkranz. The government has a compelling interest in ensuring able candidates for the military, contended Quinlivan. He also argued that threats of enforcement against schools by military recruiters, who lack the power of the purse, do not amount to official action subject to court challenge when no law school has yet been denied funding. The “power of the threat has been enough” and schools are not required to incur a penalty before they can assert free speech, responded Rosenkranz. The other plaintiffs in FAIR are the 900-member Society of Law Teachers, the Rutgers Gay & Lesbian Caucus, Professor Erwin Chemerinsky of University of the Southern California Law School, Professor Sylvia Law of New York University Law School, the Coalition for Equality, a student group at Boston College Law School, and Rutgers Law-Newark students Pam Nickisher, Leslie Fischer and Michael Blauschild. SIMILAR CASE IN PENNSYLVANIA The FAIR case is not the only challenge to the Solomon amendment. On Oct. 1, 21 professors, six students and a student association at University of Pennsylvania Law School filed Burbank v. Rumsfeld, 03 Civ. 5497, in the Eastern District of Pennsylvania. That case raises similar constitutional and statutory arguments. It alleges that since 1998 the military was allowed to interview at on-campus but non-law school locations and arrangements were made through the University’s Office of Career Services, rather than by the law school placement office. That changed after the university at large was threatened in January with a loss of at least $500 million in federal funds for research, teaching and student aid. The 165-member Association of American Law Schools, which declined to be part of the FAIR suit, requires members to condition employer access on a written agreement not to discriminate on various grounds, including sexual orientation. Most law schools, including those in New Jersey and the University of Pennsylvania, have policies condemning such discrimination. The AALS requires a member school that allows military recruiters to post a notice of its disagreement with “don’t ask, don’t tell” at minimum and urges other forms of “amelioration.” Rutgers-Newark Dean Stuart Deutsch says that a few years ago, after the military threatened funding for the entire university, the law school felt compelled to open its doors. The school posts notice on the interview-room door explaining it is letting in the recruiters to avoid losing student aid and calling discrimination against homosexuals “completely unacceptable” and the Solomon amendment “morally wrong.” “The military’s using a sledgehammer to solve a small problem,” says Deutsch. “I personally support the law suits. I hope they succeed and I hope they succeed fairly quickly.” Rutgers-Camden also posts notice, says Dean Ray Solomon. The school has not tried to exclude military recruiters, however. “We have a number of students who go into JAG every year, and it’s important for us to allow them the opportunity,” he explains. “At very elite schools where no one goes into JAG, it’s very easy to take a symbolic position,” he adds. “I would like the Solomon amendment to go away — if it did, we might do things very differently.” Seton Hall Law Dean Patrick Hobbs did not return calls seeking comment. “Don’t ask, don’t tell,” adopted in 1993, lifted the outright ban on homosexuals serving in the armed forces, but barred them from discussing their sexual orientation and forbade supervisors from inquiring into it. The Department of Defense says 9,414 service members were discharged under the policy as of Sept. 30, 2002, the last year for which figures were available. Former Judge Advocate General John Hutson, who helped formulate “don’t ask, don’t tell,” called for its repeal in an Aug. 11 opinion piece published in the National Law Journal, a publication affiliated with the New Jersey Law Journal. He described it as “well-intentioned” but “badly flawed” and “virtually unworkable.” “‘Don’t ask, don’t tell’ bought us some time to mature, but having endured a decade of this policy and having been given a prod by the Supreme Court [in Lawrence v. Texas], the time for re-examination has come,” he said. Lawrence held in June that Texas’ same-sex-only anti-sodomy law violated due process. Hutson, now dean of Franklin Pierce Law Center in New Hampshire, calls himself “ambivalent” on the Solomon amendment, however. Recalling his time in the JAG Corps, he says, “when my recruiters would come back and say they were down in the furnace room figuratively, but almost literally, I think that was a mistake.” FAIR’s local counsel is Andrew Dwyer, a partner with Newark’s Dwyer & Dunnigan.

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