RELATED LINKS-Law Students Protest Recruitment Oct. 7, 2003-Law School Coalition Files Federal Lawsuit Sept. 26, 2003-Protestors Say Military Violates GU Nondiscrimination Policy Oct. 8, 2002

The lawsuit contends that the military’s “don’t ask, don’t tell” policy toward homosexuals is in violation of the Association of American Law Schools’ bylaw 6-4, which added sexual orientation to the list of protected categories under its non-discrimination provisions. The suit alleges that the Solomon Amendment is unconstitutional because it requires that the military be granted access to campus regardless of a school’s nondiscrimination policies.

The Forum for Academic and Institutional Rights filed the suit in September.

FAIR has declined to name the 15 law schools involved in the lawsuit, but the group’s board includes professors from Georgetown, Yale, Stanford and New York Universities and the University of Southern California.

In his decision to throw out the Department of Justice’s motion to dismiss the suit, Judge John C. Lifland supported the plaintiff’s argument that a law school’s refusal to comply with the Solomon Amendment should not result in a loss of funds for the parent institution from all federal sources. He also rejected the Department of Defense’s argument that law schools must offer completely equal access to the military.

But Lifland said he would not grant an injunction because he did not support FAIR’s complaint that the law was unconstitutional.

“While allowing or assisting military recruiters on campus could be viewed as a dilution of the law schools’ message of nondiscrimination, it is far different from endorsing the military’s policy towards sexual orientation, particularly where, as here, there is no restriction on speech or conduct disclaiming any such endorsement,” Lifland said in his decision.

E. Joshua Rosenkranz, lead counsel on the case for the plaintiffs, said “the judge’s ruling not only instills comfort in law schools that they were doing nothing wrong in upholding their anti-discrimination policies, but also leaves the door wide open for an appeal.”

Rosenkranz said he and his clients have intentions to appeal the ruling against an injunction.

Georgetown law professor Mike Seidman said that Georgetown is not a member of FAIR and that law professors had not joined the lawsuit. Seidman said he thinks the case will ultimately be resolved by a Court of Appeals or by the Supreme Court.

The suit, Forum for Academic and Institutional Integrity v. Rumsfeld, was the first of four similar lawsuits filed since September. FAIR will continue to seek an injunction and will appeal Lifland’s decision to the 3rd U.S. Circuit Court.