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Is it principle or punishment? Necessity or symbolism? Constitutional or unconstitutional? A long-simmering dispute between the military and law schools over recruitment efforts that clash with school nondiscrimination policies has culminated in four separate suits raising those questions and others. In one of the four suits, the Bush administration, the recent loser in a decision by the 3rd U.S. Circuit Court of Appeals, is expected to ask the U.S. Supreme Court within the next month to decide the constitutionality of the so-called Solomon Amendment, at the core of the constitutional challenges. FAIR v. Rumsfeld, No. 03-4433. The Solomon Amendment, named for its sponsor, U.S. Representative Gerald Solomon, R-N.Y., denies federal funds to “any institution of higher education” that prohibits or effectively prevents military recruiters from having the same type of access to students as other employers. The amendment, first enacted in 1994, was a reaction to law schools’ adoption or expansion of policies that prohibited employers from using a school’s career services facilities if they discriminated on the basis of race, color, religion, national origin, sex, disability, age or sexual orientation. The last factor — sexual orientation — kept military recruiters from using schools’ career services facilities for interviews, but not from accessing students. The vast majority of law schools have not barred the military from campuses, but they have not assisted the military in the same ways they would assist nondiscriminating employers. Stepped-up enforcement by the Department of Defense after the 9/11 attacks triggered the recent lawsuits. In the 3rd Circuit case, a 2-1 panel on Nov. 29 held that the Solomon Amendment violates the First Amendment rights of educational institutions. The government’s high court appeal will present the justices with a complex challenge whose issues intersect two key doctrines: the First Amendment and unconstitutional conditions. It also has, as a significant overlay, the government’s claim that access to qualified law students is particularly critical now with the nation at war. The government’s chances for review are good, said one high court expert, who requested anonymity. “You have a federal statute struck down on constitutional grounds and an interesting and complicated argument,” he said. “I think the chances are pretty good.” Nondiscrimination policies have been in existence in higher education for decades, and the policies have expanded over time to cover protected classes. Sexual orientation, according to some scholars, was added to the list in the 1970s. The U.S. military excludes servicemembers based on evidence of homosexual conduct or orientation. In the 1980s, law schools, citing their nondiscrimination policies, began refusing to provide assistance or access to military recruiters. By 1990, the trend of adding sexual orientation to law school policies was so prevalent that the Association of American Law Schools (AALS) voted to require member schools to ban sexual-orientation discrimination and to exclude discriminatory employers from their placement offices. Congress stepped into the picture with the Solomon Amendment, which initially withheld Department of Defense funding from any educational institution that had a policy that denied or thwarted the military’s access to students. Congress has amended the Solomon Amendment several times, expanding the penalty to include not just DoD funds but funding from several other federal agencies. Under current DoD regulations, an offending “subelement” of a college or university — for example, a law school — can lose federal funds from all of the agencies identified in the statute. The parent institution will lose only DoD funds, but for research institutions, just the loss of DoD funds is a staggering blow. Over the years, many law schools avoided violations by allowing military recruiters access to campuses, but not providing them affirmative assistance in the same way they helped other recruiters. For example, Harvard Law School allowed military recruiters to recruit at the offices of its Veterans Association on campus, but did not have its placement personnel arrange the interviews. Those types of arrangements passed muster with the DoD. But the environment changed after the 2001 terrorist attacks. The DoD began insisting on equal treatment. The new policy meant that Yale Law School, which had provided a room in its building for interviews by military recruiters, also had to provide the services of its career development office to arrange interviews and post notices. The DoD advised the University of Southern California Law School that its past practices of providing military recruiters with standard employer information, referring them to the campus ROTC office for interview space, posting notices in the students’ weekly newsletter and making military recruitment materials available to students would violate the Solomon Amendment unless its career services office invited military recruiters to participate in an off-campus job fair open to other employers. By the 2003 recruiting season, the appellate court noted, every law school that received federal funding had suspended its nondiscrimination policy as applied to the military. Last summer, Congress amended the statute to codify DoD’s new policy requiring access “equal in quality and scope” to that provided to other recruiters. FIRST SUIT The first lawsuit was filed in 2003 by the Forum for Academic and Institutional Rights (FAIR) — an association of 26 law schools and law faculties — the Society of American Law Teachers, student organizations and individual law professors and students. The suit’s main counsel, E. Joshua Rosenkranz of Heller Ehrman White & McAuliffe, which is handling the case pro bono, recalled “how the Solomon Amendment was tearing apart campuses.” Rosenkranz, former executive director of the Brennan Center for Justice at New York University School of Law, said: “You would have law deans saying, ‘These values in our nondiscrimination policy are real.’ Then, you’d have the government saying, ‘You can say you don’t discriminate all you want, but we’re going to force you to abet our acts of discrimination.’ You would see deans desperately trying to convey to students — I saw it at NYU — ‘This message is real, but we have no choice but to cave.’ And students were saying, ‘What price tag do you put on our equality?’” To Rosenkranz, the Solomon Amendment presented a First Amendment problem. “In a law school, of all places, I think it was understood you cannot inculcate values by saying one thing and doing another,” he said. “To top it off, you have the military saying, ‘We will force you to articulate our message.’” The lawsuit that emerged — FAIR v. Rumsfeld –argued that the Solomon Amendment violates the First Amendment by conditioning government funding on the willingness of academic institutions to surrender their First Amendment right to choose those messages they will express and to totally disassociate themselves from those they do not wish to. The government, which successfully blocked the preliminary injunction in a New Jersey district court, countered that the amendment is not directed at speech but at conduct. Congress can regulate expressive conduct as long as there is a substantial governmental interest and the burden on expression is “not substantially broader than necessary,” it said. The government added, “The Solomon Amendment leaves educational institutions, their faculties and their students free to express whatever views they may have regarding any military policy.” The 3rd Circuit agreed with FAIR. Under the unconstitutional conditions doctrine, the appellate panel explained, the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.” The 3rd Circuit panel, in an ironic twist, relied on Boy Scouts of America v. Dale, 530 U.S. 640 (2000), and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), both of which upheld discrimination against gays on the basis of the First Amendment right of association. The panel said, “We conclude that the Solomon Amendment violates the First Amendment by impeding the law schools’ rights of expressive association and by compelling them to assist in the expressive act of recruiting.” SEEKING REVIEW The FAIR lawsuit is the only one of the four Solomon Amendment suits in which law schools are plaintiffs. It is also distinguishable from the others because it is a frontal attack on the statute. The other lawsuits have faculties and students as plaintiffs and are more fact-based as to the situation at the individual institution. The law faculties of Yale and the University of Pennsylvania filed their own suits, Burt v. Rumsfeld, No. 30CV1777 (D. Conn.), and Burbank v. Rumsfeld, No. 03CV1867 (E.D. Pa.). And a group of Yale law students filed SAME v. Rumsfeld, No. 03CV1867 (D. Conn.). Paul Smith of Jenner & Block, counsel to AALS, which filed an amicus brief supporting the challenges in all of the cases, called the First Amendment issues in the lawsuits “somewhat novel.” “Is it a pure restriction on speech or a restriction on conduct which is expressive?” he said. “There do seem to be serious impacts on academic freedom and core expression of the faculty when you tell them they can’t enforce a nondiscrimination policy which is part of the teaching function.” But like the government, one retired judge advocate general lawyer sees no First Amendment implications. “I see no application at all to law schools or faculties,” said retired Air Force Lt. Col. Raymond T. Swenson of Idaho Falls, Idaho. “They’re perfectly free to express their dislike of DoD policy on homosexuality.” The Solomon Amendment, he said, “basically asks institutions of higher education to put their money where their mouth is.” Besides the First Amendment issues, the government is expected to raise in defense of the statute its importance to military preparedness. In its motion to stay the mandate of the 3rd Circuit pending its high court appeal, the government argues that military lawyers are important to the front-line mission of the armed forces and the need for more JAG lawyers is increasing. But the government put on no evidence of military necessity in the 3rd Circuit, noted Rosenkranz and the appellate panel’s majority opinion itself. “The notion that military necessity is driving enforcement of the Solomon Amendment, at least at the University of Pennsylvania, is a phony claim,” said David Rudovsky of Philadelphia’s Kairys, Rudovsky, Epstein & Messing, counsel to the Burbank plaintiffs. “They’ve seen every student they wanted to see.”

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