Law schools file lawsuits over military recruitment

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Law schools file lawsuits over military recruitment


By ERIC TUCKER
Associated Press Writer

December 12, 2003, 5:51 PM EST


PHILADELPHIA -- Students and professors at prominent law schools across the country have gone to court to keep the military from having full access to campus recruiting because of the Department of Defense's stance on gays and lesbians.

The plaintiffs have filed four separate lawsuits contending the government's "Don't Ask, Don't Tell" policy on gays in the military amounts to a discriminatory hiring practice. One case is on appeal and government responses are expected in three others. A fifth lawsuit is expected to be filed soon.

The lawsuits were filed in response to a Pentagon policy known as the Solomon Amendment, which allows the government to withhold funding from universities that prevent the military from recruiting on campus.

Because the military has refused to sign a required nondiscrimination pledge, the plaintiffs allege, its recruiters should not be entitled to the same resources as an employer that follows the schools' hiring practices.

"This case undoubtedly has become one of the most pressing issues in higher education," said Kent Greenfield, a professor at Boston College Law School and president of the Forum for Academic and Institutional Rights. FAIR is a coalition of more than a dozen law schools, including New York University, George Washington University and Georgetown University.

Last month, a federal judge in New Jersey refused to dismiss a lawsuit filed by FAIR that sought to prevent the government from withholding financial aid. But U.S. District Judge John C. Lifland also refused to issue FAIR a preliminary injunction to prevent the government from enforcing the amendment, which the coalition says is unconstitutional and violates its members' First Amendment rights.

The case is now on appeal in the 3rd U.S. Circuit Court of Appeals in Philadelphia.

"The basic argument here is that the military has an explicit policy of discrimination, and the law schools are saying we don't assist bigotry in any way, even when it's government-sanctioned bigotry," said E. Joshua Rosenkranz, lead counsel for FAIR.

Mark Quinlivan, a Justice Department lawyer in the FAIR case, said it was against policy to comment on pending litigation. Quinlivan is also defending the government in a suit filed by professors and students at the University of Pennsylvania Law School.

In a court filing accompanying the FAIR lawsuit, government lawyers wrote that the statute "in no way prohibits plaintiffs ... from speaking out against and even vigorously protesting Congress' policy choices regarding service in the Armed Forces. Plaintiffs' attempt to pigeonhole this dispute into the unconstitutional case law simply misses the point that speech is not at issue in the statute."

A separate lawsuit, filed in October by law professors at Yale University, argues that the Solomon Amendment does not require universities to provide the government with equal and identical access to campus resources, said Robert Burt, a faculty member and lead plaintiff.

"All that we want to do is to bar the military from the use of the resources of our career development office," Burt said.

Burt said the law school does not prevent military recruiters from contacting and interviewing its students. In compliance with the Solomon Amendment, it also readily provides the government with names and addresses of students.

A group of Yale law students has filed a separate complaint.

The government is expected on Monday to file a motion to dismiss a lawsuit filed by professors and students at Penn Law School.

And professors at Harvard Law School are formulating arguments for a lawsuit they hope to file within months.

Laurence H. Tribe, a specialist in constitutional law at Harvard, said the university "has not tried to make it difficult for the military to contact our students."

He said the law school limits "full and normal" use of its career placement office to employers who agree to abide by the school's "nondiscriminatory policy."

Still unresolved, though, is the military's threat to withdraw funding _ in some cases hundreds of millions of dollars _ from schools the government believes are not compliant with the Solomon Amendment.

The threat prompted Harvard President Lawrence H. Summers to announce last month that the university would not sign onto litigation challenging the statute.

"It's like they're trying to draft us into a war that they're waging," said Burt, the Yale professor. "And the war that they're waging is, unfortunately, against gays and lesbians."