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Forty-four faculty members of Yale Law School have won standing to proceed with their suit against U.S. Secretary of Defense Donald H. Rumsfeld over the Pentagon’s demand for on-campus military recruiting in spite of its prohibition on openly gay and lesbian servicemembers. In an early courtroom battle, U.S. District Judge Janet C. Hall also found the controversy is ripe for adjudication. The suit arose over the Department of Defense’s threats to withdraw over $300 million in federal funding if the law school didn’t include military recruitment in the career development services it provides to students. Ruling that the plaintiffs have standing, Hall noted that, although the university stands to lose the funding, it is the individual faculty members who are compelled “to choose between the exercise of their constitutional rights and federal funding for themselves, Yale Law School and Yale University.” Since 1978, the law school has prohibited discrimination on the basis of sexual orientation. In light of the “Don’t Ask, Don’t Tell” policy on homosexuals serving in the military, the defense department refused to certify compliance with Yale Law’s nondiscrimination rules and military recruiters were barred from using the school’s career development office, though they were given access to classrooms and other meeting spaces, as well as students’ names and phone numbers. Passed by Congress in 1995, the Solomon Amendment denies defense department funds to schools that “prevent” military recruitment. Originally, its impact on universities was minimal, because it involved only defense department funds and applied only to the “sub-element” of the university, such as the law school, that prevents recruitment. Since Yale Law School doesn’t receive much defense funding, the amendment did little to change the school’s stance on military recruiters. In 1997, however, Congress expanded the amendment to include grants and contracts from a host of other federal agencies. In addition, the actions by a “sub-element” are now imputed to the whole university. Faced with a potential $300 million funding loss, the law school faculty “capitulated under protest” to the defense department’s demands, said the plaintiffs attorney, New Haven solo David N. Rosen. In 2002, the faculty voted to temporarily suspend its nondiscrimination policy. But that wasn’t enough to satisfy the defense department, which informed Yale that it was still noncompliant, because the nondiscrimination policy itself remained a hindrance. The letters stated that military recruiters were not given access “equal in quality and scope” to that of other employers. A May 2003 letter threatened imminent withdrawal of the funds. The faculty filed suit in October 2003. It alleges First and Fifth Amendment violations and is one of several similar suits filed by colleges and universities around the country. Ruling last month, Judge Hall said the challenge to the regulation requiring equal access by military recruiters is ready for judicial review on whether it is a reasonable construction of the Solomon Amendment. That the defense department’s principal deputy hasn’t actually deemed the school to be noncompliant didn’t prevent the court from determining that the issue was ripe. The plaintiffs’ First Amendment claims, Hall said, presented sufficiently concrete injury even before final administrative action. Department of Justice officials handling the suit could not be reached by press time. Rosen said his clients are hoping for a quick resolution of the case, having endured the violation of their constitutional rights for over two years.

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