Judge Rules on Recruiting Lawsuits

A coalition of law schools and professors seeking to limit military recruiters’ access to campuses won a partial victory Wednesday evening when a federal judge ruled that the group has sufficient legal standing to continue its suit against the Pentagon.

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.

“The decision to recognize the plaintiffs’ standing is important, and the denial of preliminary relief is no surprise and is not discouraging,” said Professor of Law Janet Halley, an outspoken critic of the Pentagon’s policy and an expert on the military’s treatment of gays and lesbians.

Although Lifland’s ruling does not bind the New Haven and Philadelphia courts, according to Greenfield, “judges in the other cases will undoubtedly look at the opinion in this case and will very well use it as a guide in those cases.”

Plaintiffs and lawyers in the other anti-Solomon Amendment suits have criticized FAIR’s legal strategy, arguing that the coalition’s motion for preliminary relief was excessively risky and undermined the overall case.

“They should be celebrating tonight,” Greenfield said of the other plaintiffs.

Lifland’s opinion contained several other bright spots for the anti-Solomon Amendment movement, Greenfield said.

First, according to Greenfield, “the judge recognized that the Defense Department has been misinterpreting the Solomon Amendment for the last 18 months.”

Until 2002, law schools achieved compliance with the Pentagon’s mandate by allowing JAG limited access to campuses. HLS permitted recruiting only through the HLS Veterans Association, a student group.

But HLS and other institutions moved to include JAG in official recruitment programs last year after Rumsfeld threatened to block all federal funds to universities that limited the armed services’ access.

Wednesday’s ruling suggested a return to the pre-2002 status quo, Greenfield said.

According to Lifland’s 89-page opinion, “anything short of preventing or totally thwarting the military’s recruitment efforts does not trigger funding denial pursuant to the statute.”

Second, Lifland wrote that universities should only stand to lose Pentagon funding—rather than all federal appropriations—if their law schools flout Solomon Amendment regulations, Greenfield said.

The subtle disparity between Lifland’s conclusion and Rumsfeld’s contention could mean a difference of hundreds of millions of dollars for institutions that challenge the statute.

Third, according to Greenfield, Lifland rejected the Pentagon’s argument that FAIR loses its standing because its membership remains anonymous.

Five FAIR participants have identified themselves publicly, including the New York University and George Washington University law schools, Greenfield said.

Officials at Harvard and Yale have both announced that they are not members of the FAIR alliance.

But members of HLS Lambda, a students’ civil rights group, said that Lifland’s ruling could encourage Harvard officials to publicly oppose the Solomon Amendment.

“I am hoping that it will spur the University to take action [against the statute] because they will see that it is a winnable issue,” said Amy R. Lawler, a second-year HLS student who is political co-chair of Lambda.

“Harvard can no longer hide behind the $328-million figure,” said Lambda secretary Holly S. Lewis, referring to the sum of federal funds that Harvard would have jeopardized if it had violated the Pentagon’s regulations in 2002.

Lewis said that if the University stays on the sidelines in the wake of Lifland’s ruling, “it is because Summers supported the military over the value of nondiscrimination.”

As HLS professors who penned the October letter to Summers await a response, opponents of the Pentagon policy hope that the 3rd Circuit will take prompt action to suspend the statute’s enforcement.

“The 3rd Circuit Court is widely thought of as being respectful of the First Amendment,” Greenfield said.

“Our First Amendment arguments will resonate even more with the Court of Appeals judges” than they have at the District Court level, he said.

Although the motion for a preliminary injunction is no longer as urgent now that the frantic fall recruiting season is finished, according to Lawler, Lambda hopes that the 3rd Circuit will move to suspend the statute before recruiting for HLS first-years begins in early spring.