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A federal judge on Nov. 5 refused to dismiss on standing grounds a challenge to a law that allows the Department of Defense to deny funding to schools that bar military recruiters. But the judge also declined to issue a preliminary injunction to the law’s enforcement, stating the plaintiffs had not established they were likely to prevail. The plaintiffs, which include students and student groups from Rutgers Law School-Newark, plan to file an emergent appeal with the 3rd U.S. Circuit Court of Appeals this week in Forum for Academic and Institutional Rights v. Rumsfeld. They charge that the Solomon Amendment, 10 U.S.C. 983(b), infringes on their First Amendment rights by forcing them to allow visits by military recruiters, despite their discriminatory “Don’t Ask, Don’t Tell” policy. They argue it forces them to suppress their own policy of opposing discrimination. They also accuse the Department of Defense of interpreting the law overbroadly by demanding not just access, but parity of access with employers who do not discriminate, and by threatening to cut off funds to entire universities and not just law schools deemed noncompliant. In denying an injunction, U.S. District Judge John Lifland of the District of New Jersey did not view the constitutional claims favorably. He found that the visits by military recruiters a few times a year did not significantly intrude on the schools’ right to proclaim their own values of diversity and tolerance. The tension between those values and the military’s recruiting policies could be eased through ameliorative measures that conveyed the schools’ position, he found. In addition, the judge said, the plaintiffs were not being compelled to endorse an abhorrent message. Because “recruiting has a dominant functional purpose, it lacks the requisite communicative content” necessary to find compelled speech, wrote Lifland. “While allowing or assisting military recruiters on campus could be viewed as a dilution of the law schools’ message of nondiscrimination, it is far different from endorsing the military’s policy towards sexual orientation, particularly where, as here, there is no restriction on speech or conduct disclaiming any such endorsement,” he continued. Lifland rejected heightened scrutiny as the appropriate test for balancing of interests. He applied intermediate scrutiny and found that the Solomon Amendment’s “relatively modest intrusion” was outweighed by the important government interest in assuring the effectiveness of raising a volunteer army. The law leaves schools free to reject military recruiters, though at the cost of funding, and free to voice objections and distance themselves from “Don’t Ask, Don’t Tell,” he said. Lifland found no viewpoint discrimination in the punishment of only those law schools that exclude the military because they disagree with its recruiting policy. He reasoned that there is no direct restriction on expression and that even law schools that comply continue to openly condemn the military’s hiring policy. The plaintiffs did find some reason for cheer in Lifland’s apparent rejection of a strict-equality-of-access stance. Many law schools, including FAIR members, claim they tried compromises such as using non-law school personnel to arrange interviews only at off-campus locations, but recently came under fire for the differential treatment even though they provided meaningful access. “Anything short of preventing or totally thwarting the military’s recruiting efforts does not trigger funding denial,” Lifland wrote. “While it is conceivable … that a substantial disparity between treatment of the military and other employers could rise to the level of ‘in effect prevent[ing]‘ military recruitment efforts, the Court simply fails to see how the statute requires absolute parity when all that it requires is that a school not ‘prohibit’ or ‘in effect prevent’ military recruiting efforts.” Lifland also differed with the military on whether law school noncompliance could de-fund the entire parent institution from a broad range of federal sources, not just Department of Defense monies. “An offending subelement, or law school, risks DOD funding earmarked for the law school and its parent institution, as well as other federal funding flowing to the law school itself (but not to the parent).” The rejected standing challenge was chiefly focused on the fact that no law school was a plaintiff, only an association of unnamed law schools, FAIR, whose membership insisted on confidentiality based on fear of government retaliation and public vilification. The plaintiffs include the Forum for Academic and Institutional Rights, an association of 15 law schools; the 900-member Society of American Law Teachers; two gay and lesbian student associations; three law students; and two law professors. The students and one of the student groups are from Rutgers Law School-Newark. On the date of oral argument, however, Golden Gate University came forward as a FAIR member and has since been joined by four more law schools — Whittier, New York University, Chicago-Kent and George Washington University. FAIR, filed on Sept. 19, was the first of four suits nationwide that challenge the Solomon Amendment. Faculty and students from University of Pennsylvania Law School filed Burbank v. Rumsfeld, in the Eastern District of Pennsylvania on Oct. 1. Yale Law School faculty and students have separate suits in the District of Connecticut: Burt v. Rumsfeld, filed on Oct. 16, and SAME v. Rumsfeld, filed on Oct. 30.

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