But Judge John C. Lifland of the U.S. District Court in Newark also denied the plaintiffs’ motion for a temporary injunction that would have allowed law schools to immediately curtail Judge Advocate General (JAG) recruiters’ access to students.
While he rejected the Pentagon’s motion to dismiss the suit, Lifland indicated his deep skepticism of the plaintiffs’ central arguments.
“Plaintiffs have not established a likelihood of success on the merits of their constitutional claims,” Lifland wrote.
But Lifland expressed sympathy for the plantiffs’ contention that Secretary of Defense Donald H. Rumsfeld has overstepped his Congressional mandate.
The suit challenges the 1996 Solomon Amendment, which allows the Pentagon to deny federal funding to universities that inhibit on-campus military recruiting.
Opponents of the statute claim that it unconstitutionally overrides law schools’ nondiscrimination policies, which require that recruiters treat employees equally on the basis of sexual orientation.
The armed forces’ “don’t ask, don’t tell” protocol requires the discharge of openly gay and lesbian military personnel.
The suit was filed in September by the Forum for Academic and Institutional Rights (FAIR), a network of 15 law schools, and the Society of American Law Teachers (SALT), a professors’ group.
FAIR President Kent Greenfield, a professor of law at Boston College, said yesterday he was “encouraged and heartened” by the ruling.
At the same time, he said his organization will continue to seek a temporary injunction against the military, appealing Lifland’s denial of FAIR’s motion for preliminary relief to the 3rd U.S. Circuit Court.
The FAIR and SALT suit was the first in a series of legal efforts challenging the statute this fall.
A group of 21 University of Pennsylvania Law School professors and six students filed a complaint in the Philadelphia U.S. District Court last month.
Two groups from Yale Law School—one encompassing a majority of faculty members, the other comprising a pair of student groups—subsequently filed suit in a New Haven federal court.
Also last month, a majority of the Harvard Law School (HLS) faculty signed a letter to University President Lawrence H. Summers requesting that he initiate or join litigation against the Pentagon’s policy.
Lifland’s ruling in the FAIR and SALT case could provide a boost to other groups challenging the statute, Solomon Amendment opponents said.