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A lawyer representing a coalition of professors and law schools argued in federal court Friday for the immediate suspension of a law that forces universities to allow military recruiters on campus or risk losing federal funding.
The hearing, in a New Jersey federal district court, was the first in a lawsuit that claims the 1995 law known as the Solomon Amendment infringes on free speech rights because it coerces academic institutions into allowing the military—which discriminates against openly gay individuals—on campus.
The amendment states that if universities prevent military recruitment, the Secretary of Defense can recommend federal research funding be denied.
In court papers, E. Joshua Rosenkranz, the lead counsel for the plaintiffs, called the Solomon Amendment “one of the most flagrant efforts by the government in decades to use its power of the purse to suppress expression.”
Rosenkranz asked U.S. District Judge Judge John C. Lifland in Newark to issue a preliminary injunction suspending enforcement of the law while the trial determining the law’s constitutionality proceeds.
Lifland denied an earlier request, filed at the same time as the initial brief, for a temporary restraining order on military recruiting until Friday’s injunction hearing, according to The New York Times.
The Justice Department argued in its response that the Solomon Amendment is legitimate because it defends the authority of Congress to sustain military forces and appropriate federal funds as it chooses.
Government attorney Mark Quinlivan said in his statement that the law does not violate free speech.
“The statute in no way prohibits plaintiffs (or law schools, law school faculty, law school organizations, or law students generally) from speaking out against and even vigorously protesting Congress’ policy choices regarding service in the Armed Forces,” Quinlivan wrote in his filings to the court.
He also argued that the suit is not valid because the coalition of plaintiffs are mostly individuals or law schools—but not the universities that would be denied funding should the law schools ban military recruitment on campus.
While Quinlivan pointed out that no universities have lost funding as a result of the amendment, Rosenkranz said many schools have changed recruiting policy because they were told the universities would lose funding if they did not.
Lifland, who could throw out the suit completely or set a court date while denying or granting the suspension, said Friday that he would rule within the next two weeks, according to the Associated Press.
Law schools, professors and a few student groups are leading the lawsuit under the umbrella organizations of the Society of American Law Teachers (SALT) and the Forum for Academic and Institutional Rights (FAIR).
While a coalition of law schools signed onto the suit anonymously under FAIR, Harvard Law School (HLS) is not party to the suit, according to Dean Elena Kagan.
In a statement released when the suit was filed last month, Kagan wrote that HLS is not a member of FAIR, but that she shares its “commitment to nondiscrimination.”
Rosenkranz said that he understands that some law schools would not want to join the suit—even anonymously—out of fear of retribution from the government.
“Every school has to follow its own conscience,” he said.
But several HLS professors are among SALT’s approximately 800 members nationwide, including founding member and Frankfurter professor of Law Alan M. Dershowitz.
Undergraduates, law students and professors have criticized the University and HLS for not doing more to protest the government’s crackdown.
On Thursday, the College’s Bisexual, Gay, Lesbian, Transgendered and Supporters Alliance and Lambda, the law school’s corresponding group, hosted a teach-in on military policy towards gays.
This weekend, Lambda sponsored a two-day conference on issues of gays in the military, including the Solomon Amendment.
“Despite its strong rhetoric against discrimination in military recruiting, Harvard has declined to fight the policy even in ways that would not threaten its funding,” said first-year law student Matthew D. Muller, who is a former Marine and a member of Lambda. “I’m disturbed by Harvard’s failure to uphold its stated principles and protect its students.”
The legal controversy is the latest offshoot of the military’s controversial “don’t ask, don’t tell” policy, which emerged in the mid-1990s.
The policy provides that openly gay people may serve in the U.S. military, but are not allowed to reveal their sexual orientation.
Law schools and military officials have long been at odds over recruiting practices and policy towards gays.
In 1990, the American Association of Law Schools added “sexual orientation” as a category to its non-discrimination policy.
As a result, many law schools, including Harvard, barred or limited military recruiting on campus.
But last year, after the Air Force informed then-HLS Dean Robert C. Clark that the government would begin enforcing the Solomon Amendment—which would cost the University as much as $328 billion in federal funding if it continued to ban military recruiters—HLS let the recruiters on campus.
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