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Federal court refuses preliminary injunction against Solomon Amendment

The government’s policy of depriving universities of federal funding if they bar military recruiters from using their campus placement offices survived a test in a U.S. district court on November 5.

Judge John Lifland of New Jersey ruled that a coalition of law schools and law professors was not entitled to a preliminary injunction against the policy.

Lifland’s decision was the first court ruling in what may turn into a long battle over the constitutionality of the so-called “Solomon Amendment,” legislation originally initiated by former New York Gov. Mario Cuomo’s executive order banning anti-gay discrimination by the state government. Based on the executive order, a state trial court ruled that the law school at the State University of New York (SUNY) at Buffalo had to exclude military recruiters from its placement office.

The tug of war between American higher education and the Defense Department has been going on since the Vietnam War era, when some schools chose to end Reserve Officer Training Corps (ROTC) programs and bar military recruiters from their campuses to protest the war. These battles died down during the mid-1970s, but re-emerged at the end of the decade as campus gay rights activists agitated against military recruitment because of the Defense Department’s discrimination against gay people.

By the early 1980s, arguments about discrimination had gained momentum in the nation’s law schools, with many adopting non-discrimination policies that barred military recruiters. The campaign accelerated in 1990 when the Association of American Law Schools amended its by-laws to require member schools to have policies against on-campus sexual orientation discrimination, including in their placement offices.

A few years later, gay students at SUNY-Buffalo’s Law School sued to get the military excluded, citing Cuomo’s executive order. Their success in court stirred up Rep. Gerald Solomon, a conservative Republican who represented that district in Congress.

In 1995, Solomon succeeded in adding an amendment to the Defense Appropriations Bill that would deny Defense Department funds to any school that excluded military recruiters. The Defense Department itself, however, opposed the measure because it endangered research programs at major universities, so it adopted a narrow interpretation of the law. If a law school barred military recruiters, then no Defense Department money could go to the law school, but money could continue to flow to other units at a university.

This interpretation gutted the Solomon Amendment since law schools rarely receive any substantial money under the Defense budget. Solomon went back to the drawing board for tougher legislation that explicitly threatens the entire university with loss of funds from a broad array of federal departments, not just Defense, if any unit of the university bars military recruiters. Reacting to the new threat, almost all law schools either decided to let military recruiters back in, or were ordered to do so by their university administrations, many in the fall of 2001 in the wake of the September 11 terrorist attacks and ensuing military actions.

This led to the lawsuit organized by a group of activists who formed the non-profit Forum for Academic and Institutional Rights, Inc. (FAIR), and persuaded several law schools to become “anonymous members” for purposes of bringing suit. The Society of American Law Teachers, a self-styled “progressive” organization, joined the lawsuit, as did some individual law faculty members, student organizations, and students. They argued that the Solomon Amendment violates their First Amendment rights of academic freedom, free speech, and association.

The government responded that FAIR did not have “standing” to bring its lawsuit, that a complaint would have to come from a specific school. In response, several law schools—New York University, and more recently, in separate suits, those at the University of Pennsylvania and Yale University—agreed to be open in their challenge to the government policy.

The plaintiffs asked the judge to issue a preliminary injunction, to suspend enforcement of the Solomon Amendment pending a trial of the case

In his November 5 ruling, Lifland upheld the standing of the plaintiffs to bring the lawsuit, but concluded that the plaintiffs were not entitled to a pretrial injunction. Such injunctions are reserved for situations in which plaintiffs show a strong likelihood that they will prevail, that failure to issue the pretrial injunction would cause injuries that could not later be remedied, and that the public interest would be served.

Lifland accepted the plaintiffs’ argument that their First Amendment rights were implicated by enforcement of the Solomon Amendment. However, he concluded that any burden imposed on the schools is merely an incidental effect of the law, which was passed to enhance military recruitment, not specifically to regulate or forbid any expression of views. Lifland observed that the law schools remain free to disassociate themselves from the discriminatory military policies by communicating their disapproval.

Lifland also found that the government’s interest in recruiting qualified legal professionals is substantial, especially in light of the current overseas military engagements that have swollen the numbers in active service.

Finding that the public interest would not be served by limiting recruitment and that the law schools can take steps to minimize the incidental injury they suffer, Lifland denied the preliminary injunction.

Both parties will now file motions for summary judgment on the merits, but since Lifland’s opinion strongly signals his inclination to rule against the plaintiffs on such motions, the real action will likely move to Philadelphia when the opinion is appealed to the U.S. Court of Appeals for the 3rd Circuit.

In the meantime, both Stanford and Harvard Universities are reportedly considering filing their own lawsuits against the Solomon Amendment, so it is possible that before long the government will be face the FAIR suit plus lawsuits by four major research universities on the issue of anti-gay discrimination in the military.

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Updated 5:17 pm, July 20, 2018
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