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Solomon Appeal Brief Filed

Military recruiting challenge reaches third circuit

By Andrew C. Esensten and Daniel J. Hemel, Crimson Staff Writerss

Attorneys for a network of law schools asked a federal appeals court to immediately halt enforcement of the Solomon Amendment in a brief filed Monday.

The 15 law schools in the Forum for Academic and Institutional Rights (FAIR) claim the Pentagon has violated their nondiscrimination policies, which require recruiters who use school resources to treat employees equally regardless of sexual orientation.

The suit is one of a series of legal challenges to the 1996 statute, under which the Pentagon has threatened to cut federal funding for universities that curb military recruiters’ access to students.

The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay members of the armed services.

In November, U.S. District Court Judge John C. Lifland, a 1957 Harvard Law School (HLS) graduate and Reagan appointee, denied FAIR’s motion to block enforcement of the statute.

But a lawyer for FAIR and its fellow litigants, E. Joshua Rosenkranz of the New York law firm Heller, Ehrman, White and McAuliffe, predicted that the Philadelphia-based Third Circuit Court of Appeals, which has a “history of respectful application of the First Amendment,” would overturn the lower court’s ruling.

Lifland may have balked at overturning Pentagon policy because “this is a relatively big hitting thing to do, and often district court judges try to be more conservative,” said Chai R. Feldblum, a Georgetown law professor and FAIR board member.

“Once you have three judges hearing the law, when the law is really quite strong in this case, I think we will be more successful,” she said.

The FAIR brief argues that Lifland’s ruling bucked the Supreme Court’s June 2003 decision in Grutter v. Bollinger. In that case, which addressed the use of race as part of the criteria for admission at the University of Michigan Law School, the Court affirmed that “universities occupy a special niche in our constitutional tradition” and are entitled to extensive First Amendment freedoms.

“Judge Lifland got it wrong,” Rosenkranz said. “He made one mistake that permeated the entire opinion: to treat nondiscrimination policies as conduct rather than as speech and thereby to take it out of the First Amendment rubric.”

“Nondiscrimination policies are speech at the core,” Rosenkranz added. “They are about declaring and acting upon a position, just like a protest march. When a recruiter uses a campus forum to persuade people to join their cause, that’s pure speech.”

Feldblum said that by opening the door to military recruiters, schools are indeed making a clear, if unspoken, statement in support of the “don’t ask, don’t tell” policy.

“It is saying, ‘Welcome in. We don’t see anything wrong with you coming here and trying to get people to work for you. We agree with your recruiting principles, which include we only want you if you don’t say you’re gay,’” Feldblum said.

If FAIR can convince the appellate court judges that allowing recruiters on campus is commensurate with speech, “we will have a much stronger constitutional claim,” she said.

Although the Third Circuit denied FAIR’s motion for an expedited appeal, Rosenkranz said he was undeterred because the court is known for its “very fast docket.” He said that litigants would likely appear before the three-judge panel for oral arguments in mid-March.

The plaintiffs argued for immediate action against the Pentagon because “each day of this First Amendment violation is irreparable harm that outweighs the minimal impact on the military’s effort to recruit lawyers,” according to the brief filed Monday.

“When the government forces a law school to abet a discriminatory employer...it undermines the school’s academic decisions, muddles the school’s message, and compels the school to carry a message and support a cause against its will,” the plaintiffs argue in the brief.

HLS exempted the military from its nondiscrimination policy in 2002 after Pentagon officials threatened to block hundreds of millions of dollars in federal funds to the University.

While University President Lawrence H. Summers called the Pentagon’s policy “offensive to human dignity” in a Dec. 3 letter to the Harvard Gay and Lesbian Caucus, he has said on multiple occasions that Harvard will not join FAIR’s coalition.

Law students and professors from Yale and the University of Pennsylvania have filed their own suits. Students and professors at HLS have made moves towards initiating litigation but have not released a timetable for action.

FAIR protects its member schools’ anonymity to shield them from Pentagon retaliation, but New York University Law School and four others have publicly identified themselves as part of the coalition.

FAIR is joined in its lawsuit by individual activists and the Society of American Law Teachers, an organization of over 800 professors.

The suit lists Secretary of Defense Donald H. Rumsfeld and five other Bush cabinet members as defendants.

Pentagon officials did not return repeated requests for comment.

FAIR’s brief argues that the Solomon Amendment does not require schools to provide “affirmative assistance,” such as use of universities’ recruiting resources, to military representatives.

But according to FAIR’s brief, “the military executed an about-face” in December 2001, demanding inclusion in the schools’ official recruiting functions.

Regardless of the Third Circuit’s ruling, litigants will likely appeal the decision to the Supreme Court, Feldblum said.

—Staff writer Andrew C. Esensten can be reached at esenst@fas.harvard.edu.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.

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