A federal appeals court issued a clear reversal of the controversial Solomon Amendment in Philadelphia Monday, ruling that the federal government cannot revoke funding from universities that ban military recruiters from campus.
The ruling provides a welcome boost for Yale Law School professors and students, who are plaintiffs in separate but similar suits against the Defense Department, as their cases make their way through Connecticut District Court. In a 2-1 decision, a panel of the United States Court of Appeals for the Third Circuit ruled that the Solomon Amendment violates universities’ First Amendment rights by unlawfully compelling the schools to convey messages of support for the Defense Department’s “don’t ask, don’t tell” policies on homosexuality.
In its decision supporting a coalition of law schools and professors that sued the Defense Department, the court cited a 2000 Supreme Court decision that the Boy Scouts of America has a right to exclude gay scoutmasters as evidence that the nation’s universities also should be allowed to oppose military recruiters on the grounds that the Defense Department’s stance on sexual orientation violates the universities’ recruitment policies of nondiscrimination.
Joshua Rosencranz, a New York attorney for the Philadelphia suit’s lead plaintiffs — the Society of American Law Teachers and the Forum for Academic and Institutional Rights — called the ruling a “sweeping and expansive indication of liberty.”
“It was a grand slam and everything that we could have hoped for,” Rosencranz said. “The court thoroughly went through the arguments one by one and rejected all the arguments against us.”
The Defense Department declined to comment on the Philadelphia court’s decision and would not say whether they are planning to appeal.
“We are studying the court’s decision,” Pentagon spokesperson Sandy Burr said Monday night, declining to comment further.
The dissenting opinion in the case argued the majority had not realized the importance of unfettered military recruiting. The minority said the Solomon Amendment does not violate First Amendment rights because the universities are not banned from criticizing the military, but only threatens the loss of federal funding.
In the fall of 2002, the Yale Law School voted to temporarily suspend its nondiscrimination recruiting policy to allow recruiters for the military’s Judge Advocate General program to visit campus. The controversial move was intended to preserve about $350 million in federal funding that the University receives each year, and has prompted numerous protests at the Law School.
Yale law professor Robert Burt, the leading plaintiff in the Yale lawsuit against the Defense Department, said this court’s decision should help his case, as oral arguments are scheduled to start in early December.
“In strictly formal jurisdiction terms, this was a decision of the Third Circuit, and we are in the Second Circuit, but I do think it will be a favorable influence for our position,” Burt said. “If the judge had felt inclined to rule in our favor … and the Third Circuit had ruled the other way, it would make it a little harder.”
The decision will not immediately apply outside of the Third Circuit, but a preliminary injunction will prevent the government from cutting off funding from any university until the case is disposed of.
Burt added he anticipates the Defense Department will appeal the ruling by the three-member panel to seek a full court decision.
“I think there is a great likelihood for the decision to change if it is heard by the full court,” Burt said. “If you get a majority saying that they want to rehear the case, that is suggesting the majority would come out the other way.
Michael Rooke-Ley, president of SALT, the nation’s largest association of law professors, said his group welcomed the decision, although it was not entirely unexpected.
“We are eternal optimists about this,” Rooke-Ley said. “But this decision makes it quite clear that this is not simply a symbolic speech case.”
Although Rosencranz acknowledged that other trial courts across the country with similar lawsuits pending will be influenced by Monday’s decision, he said he thinks the ruling will provoke the Defense Department to pursue an appeal.
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