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In a major victory for gay rights advocates, the 3rd U.S. Circuit Court of Appeals has ruled that Congress cannot force law schools to allow U.S. armed forces recruiters on campus — by threatening a cut-off of all federal funding — since the military’s policy of excluding gays and lesbians conflicts with the anti-discrimination policies enforced by most law schools. The 102-page decision in Forum for Academic and Institutional Rights v. Rumsfeld is the first federal appellate decision to address the constitutionality of the Solomon Amendment, a 1994 law that requires universities to provide access to military recruiters on campus or forfeit federal funding. By a 2-1 vote, the court found that FAIR — a coalition of law schools and law professors — is likely to succeed in its claim that the Solomon Amendment violates the law schools’ First Amendment rights by compelling them to engage in speech they disagree with. “The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom,” U.S. Circuit Judge Thomas L. Ambro wrote in an opinion joined by Senior U.S. Circuit Judge Walter K. Stapleton. As a result, Ambro found that U.S. District Judge John C. Lifland of the District of New Jersey erred in refusing to issue a preliminary injunction barring enforcement of the Solomon Amendment because the plaintiffs had shown that the law violates their free speech rights while the military had failed to show that it had a “compelling” need to conduct its recruiting on campus. “The government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal. And not only might other methods of recruitment yield acceptable results, they might actually fare better than the current system,” Ambro wrote. “While no doubt military lawyers are critical to the efficient operation of the armed forces, mere incantation of the need for legal talent cannot override a clear First Amendment impairment,” Ambro wrote. The reality, Ambro found, is that the controversy surrounding the law could be harming the military’s recruiting efforts. “It may plausibly be the case that the Solomon Amendment, which has generated much ill will toward the military on law school campuses, actually impedes recruitment,” Ambro wrote. But in a lengthy dissenting opinion, Senior U.S. Circuit Judge Ruggero J. Aldisert said he would have upheld the lower court’s decision to uphold the law. “I apply the balance-of-interests test and decide that the interest of protecting the national security of the United States outweighs the indirect and attenuated interest in the law schools’ speech, expressive association and academic freedom rights,” Aldisert wrote. Aldisert said he believes the Solomon Amendment passes constitutional muster because its provisions “govern conduct while only incidentally affecting speech.” In the suit, FAIR was joined by the Society for Law Teachers Inc., the Coalition for Equality, the Rutgers Gay and Lesbian Caucus, two law professors and three law students. Soon after FAIR’s suit was filed in New Jersey, similar challenges to the Solomon Amendment were brought by law professors and students at the University of Pennsylvania Law School and Yale Law School. But district courts handling the Penn and Yale cases have not yet ruled on the constitutionality of the law. HISTORY OF CONFLICT In his opening paragraphs, Ambro traced the history of the conflict between law schools and military. Ambro noted that law schools have “long maintained formal policies of non-discrimination that withhold career placement services from employers who exclude employees and applicants based on such factors as race, gender and religion.” In the 1970s, Ambro found, law schools began expanding those policies to prohibit discrimination based on sexual orientation. That trend, he said, culminated in the 1990 decision by the American Association of Law Schools to include sexual orientation as a protected category. Today, Ambro found, “virtually every law school” now has a comprehensive non-discrimination policy that includes sexual orientation. By contrast, Ambro said, the U.S. military “excludes service members based on evidence of homosexual conduct and/or orientation.” Beginning in the 1980s, Ambro said, some law schools began refusing to provide access and assistance to military recruiters. In 1994, Rep. Gerald Solomon, R-N.Y., sponsored an amendment to the annual defense appropriation bill that proposed to withhold Defense Department funding from any educational institution with a policy of denying or effectively preventing the military from obtaining entry to campuses, or access to students on campuses, for recruiting purposes. But the law was amended in 1999 to apply only to those schools that “prohibited” or “prevented” military recruiters from gaining access to students. As a result of that change, Ambro found that “many law schools avoided the Solomon Amendment’s penalty” by “merely allowing military recruiters to gain access to campuses.” In doing so, Ambro said, the law schools were able to reaffirm their opposition to the military’s exclusionary employment policy by not providing them “affirmative assistance” in the manner provided to other recruiters. But after the September 2001 terrorist attacks, Ambro found that the Department of Defense began applying “an informal policy of requiring not only access to campuses, but treatment equal to that accorded other recruiters.” In letters to university presidents, the DOD said the law required schools “to provide military recruiters access to students equal in quality and scope to that provided to other recruiters.” Earlier this year, Ambro found, Congress amended law again to incorporate the Defense Department’s informal policy. “Now, under the terms of the statute itself, law schools and their parent institutions are penalized for preventing military representatives from gaining entry to campuses for the purpose of military recruiting ‘in a manner that is at least equal in quality and scope to the [degree of] access to campuses and to students that is provided to any other employer,’” Ambro wrote. In the suit, FAIR argued that the Solomon Amendment impairs law schools’ First Amendment rights under the doctrine of “expressive association.” Ambro agreed, finding that the law forced schools to participate in government speech. Ironically, Ambro found that the law schools’ position was supported by the U.S. Supreme Court’s 2000 decision in Boy Scouts of America v. Dale in which the justices held that the Boy Scouts could not be forced to accept an openly gay scoutmaster. “Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath,’ the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness,” Ambro wrote. “Just as the Boy Scouts maintained that ‘homosexuals do not provide a role model consistent with the expectations of scouting families,’ the law schools maintain that military recruiters engaging in exclusionary hiring ‘do not provide a role model consistent with the expectations of,’ their students and the legal community,” Ambro wrote. Likewise, Ambro said, while the Boy Scouts argued that they were aiming to “inculcate [youth] with the Boy Scouts’ values — both expressively and by example,” the law schools, too, say they are aiming to “inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies.” Ambro noted that, in Dale, the justices held that an openly gay man’s presence in the Boy Scouts “would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior.” Likewise, Ambro said, “the presence of military recruiters would, at the very least, force the law schools to send a message, both to students and the legal community, that the law schools ‘accept’ employment discrimination ‘as a legitimate form of behavior.’” ‘AN ACADEMIC EXERCISE’ In a strongly worded dissent, Aldisert said he was personally disturbed that law schools would, “as an academic exercise,” ignore the consequences that a recruiting ban would have on the military’s ability to compete with well-heeled law firms for young talent. “They obviously do not desire that our men and women in the armed services, all members of a closed society, obtain optimum justice in military courts with the best-trained lawyers and judges,” Aldisert wrote. Aldisert said he rejected the plaintiffs’ argument that the schools were being asked to violate their own anti-discrimination policies by welcoming recruiters who won’t take openly gay men and women. “We cannot conclude that the mere presence of a uniformed military recruiter permits or compels the inference that a law school’s anti-discrimination policy is violated,” Aldisert wrote. “The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. What we know as men and women we cannot forget as judges.” The Justice Department, which represented the government in the case, said it was examining the decision and reviewing its appeal options. “The United States continues to believe that the Solomon Amendment is constitutional. As we argued in our brief, we believe that Congress may deny federal funds to universities which discriminate and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in serving our country,” the agency said in a statement, The Associated Press reported.

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