Judge John C. Lifland of the U.S. District Court in New Jersey issued an opinion Wednesday on a suit against the U.S. Department of Defense concerning the 1995 Solomon Amendment. Lifland refused to issue a preliminary injunction against the Defense Department for threatening to withhold federal funds from universities, but rejected the government’s motion to dismiss the case.
The suit against the Defense Department was filed Sept. 19 on behalf of the Forum for Academic and Institutional Rights, a largely anonymous coalition of law schools, students and others.
The FAIR lawsuit 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.
Yale General Counsel Dorothy Robinson said she was pleased by the opinion and thinks it is “very likely” Yale will be found to be in compliance with the Solomon Amendment.
“From our perspective, we believe the position taken by the Law School and the University is in compliance,” Robinson said.
The FAIR lawsuit alleges that the Solomon Amendment, which denies federal funding to any university whose law school denies military recruiters full access to its students, has been misread and misapplied and violates law schools’ Constitutional Rights. Many law schools across the country, including Yale Law School, have suspended nondiscrimination policies since 2002 when the administration of U.S. President George W. Bush ’68 began aggressively enforcing the Solomon Amendment. Citing the “don’t ask, don’t tell” policy on homosexuality, military recruiters had refused to sign the law schools’ nondiscrimination clauses.
Yale Law has publicly stated that it is not a member of FAIR, but some Yale Law professors sit on FAIR’s board.
Lifland’s opinion recognized the legal standing of all plaintiffs to file the suit, but denied that the the Solomon Amendment encroached on First Amendment interests sufficiently to outweigh the government’s interest in recruiting. But it said the Solomon Amendment does not require law schools to grant military recruiters “equal access” to their students.
“Law schools are free to proclaim their message of diversity and tolerance as they see fit, to counteract and indeed overwhelm the message of discrimination which they feel is inherent in the visits of the military recruiters,” Lifland’s opinion said.
Yale President Richard Levin said he hoped the the opinion would help Yale convince the Defense Department the Law School’s policies are “legitimate.”
Defense Department officials could not be reached for comment.
FAIR President and Boston College law professor Kent Greenfield said the plaintiffs were disappointed Lifland did not grant them an injunction, and were preparing an appeal. He said he was pleased with the court’s opinion that law schools need not grant equal access to military recruiters.
“Law Schools can do everything they want to challenge military recruiters when they come on campus, as long as they don’t totally thwart them,” Greenfield said.
Yale Law professor Robert Burt, one of the lead plaintiffs in the Yale Law faculty suit, said he was not surprised FAIR was denied a preliminary injunction.
“[A preliminary injunction] is an extraordinary remedy,” Burt said.
The Yale faculty lawsuit does not seek a preliminary injunction, seeking instead declaratory and injunctive relief from the Solomon Amendment.