FAIR suit may affect recruiting



Judge John C. Lifland’s Nov. 5 opinion in the lawsuit FAIR et. al. v. Rumsfeld did not immediately change the legal status of military recruitment on law school campuses. But some of those with interests at stake in lawsuits pending against the Department of Defense say Lifland’s opinion could fundamentally impact Yale Law School’s approach to the military recruitment issue.

Lifland’s opinion denied the plaintiffs — including the Forum for Academic and Institutional Rights, a mostly anonymous coalition of law schools and law faculty — a preliminary injunction against the Department of Defense, which had threatened to withhold federal funds from universities who allegedly violate the 1995 Solomon Amendment. But at the same time, Lifland rejected the government’s motion to dismiss the case.

The Solomon Amendment says that any university whose law school denies military recruiters full access to its students is liable to lose all federal funding. The FAIR lawsuit alleges that the Solomon Amendment has been misinterpreted and violates law schools’ constitutional rights.

Lifland denied FAIR an injunction on the grounds that any rights violations by the Solomon Amendment were not sufficient to warrant limiting Congress’ prerogative to maintain armed forces.

The suit FAIR and other plaintiffs filed on Sept. 19 in the U.S. District Court of New Jersey was the first of four Solomon Amendment lawsuits now pending against the Department of Defense. Two student groups at Yale Law School, 44 Yale Law professors and a group of law professors and students at the University of Pennsylvania have all filed similar suits.

Kent Greenfield, president of FAIR and a professor at Boston College Law School, said he was disappointed not to have been granted an injunction. But he said he hopes Yale and other law schools will use Lifland’s opinion, which allows “anything short of preventing or totally thwarting the military’s recruitment efforts,” as the legal precedent for a reinstitution of their non-discrimination policies.

But Yale Law professor Robert Burt, a lead plaintiff in the Yale faculty lawsuit, said he did not think Yale Law would change its policies based on a federal judge in New Jersey’s opinion when the Yale faculty and student suits were pending in the U.S. District Court of Connecticut.

Greenfield said he thinks Lifland made a statement simply by allowing the case to proceed.

“The most important holding was that [Lifland] denied the government’s motion to dismiss,” Greenfield said.

Many law schools across the country, including Yale Law School, suspended nondiscrimination policies in 2002 when the administration of U.S. President George W. Bush ’68 began requiring strict adherence to the Solomon Amendment. Military recruiters have refused to sign the law schools’ nondiscrimination clauses due to the military’s “don’t ask, don’t tell” policy on homosexuality.

Yale General Counsel Dorothy Robinson said she thinks Lifland’s opinion will lead to an eventual recognition that Yale Law school has always been in compliance with the Solomon Amendment.

Greenfield said he thinks Lifland sent a “very clear statement” that there are limits to the Solomon Amendment’s reach.

“Only Department of Defense funds are at issue,” Greenfield said. “The law schools need not provide equal access, which I think is huge.”

Greenfield said the plaintiffs plan to file an appeal before a 60-day deadline.

Department of Defense officials could not be reached for comment.

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