U.S. District Court, New Jersey
A coalition of law schools and an organization of 800 law professors from some 160 law schools sued the Department of Defense in federal court today challenging the military’s efforts to force them to abandon their anti-discrimination policies. The lawsuit challenges the constitutionality of the Solomon Amendment, a federal statute that punishes universities and colleges with loss of federal funds if they exclude military recruiters from campus under longstanding policies that prohibit assistance to any employer that discriminates.
Every accredited law school in the nation adheres to a non-discrimination policy that covers race, ethnicity, gender, physical disability, and a range of other characteristics, including sexual orientation. Law schools have made no exception for any employer, and apply the policy evenhandedly to the military, because it explicitly discriminates on the basis of sexual orientation Over the past 18 months the military has taken the stance that the Solomon Amendment requires schools to give military recruiters the benefit of every service and facility they make available to any employer that does not discriminate, and have threatened to cut off all funds to the entire university—covering everything from clinical studies and weapons research to humanities grants—if a law school violates the policy. This year, for the first time, every law school in the nation that receives federal funds has permanently caved to military pressure. For some schools, the sums at stake was in the hundreds of millions of dollars.
The suit, captioned Forum for Academic and Institutional Rights, Inc. & Society of American Law Teachers, et al. v. Rumsfeld, et al., alleges that the Solomon Amendment is a blatant violation of the First Amendment rights of academic institutions and faculties to decide what lessons to teach their students and how to teach those lessons. It points out that the Solomon Amendment’s sponsors never hid their censorial purpose, to “send a message over the walls of the ivory tower,” and to make law schools understand that there would be a “price to pay” for their “starry-eyed optimism.”
“It’s censorship, plain and simple,” said Prof. Kent Greenfield, a Boston College law professor who recently founded lead plaintiff Forum for Academic and Institutional Rights, Inc., an association of law schools committed to fighting for academic freedom.
“Whether Congress had prohibited non-discrimination policies outright, or just punished those who applied them with the loss of all federal monies, the result is equally coercive and equally offensive to the First Amendment.”
“It is not enough for a law school to tell its students it is against discrimination,” added Prof. Michael Rooke-Ley, a visiting law professor at Seattle University, who is co-president of the Society of American Law Teachers, the other lead plaintiff. “If a law school hopes to have any credibility with its students—if it wants to teach them about justice and principle—it has to walk the walk, too. That’s what these non-discrimination policies are about.” SALT co-president Prof. Paula C. Johnson of Syracuse University College of Law agreed, adding, “The only way to attract a diverse student body and ensure that they contribute to a robust marketplace of ideas is to assure them they are all equal in our eyes and that we will not abet anyone who would treat any of them as second class citizens.”
The lawsuit was filed in federal court in New Jersey. The plaintiffs are represented by E. Joshua Rosenkranz of Heller Ehrman White & McAuliffe LLP. He explained the legal theory: “If there has been one constant in First Amendment law over the past century, it is that the government may not dictate orthodoxy. It may not punish its subjects for criticizing government policies. And it certainly may not force its subjects to support a government message, such as, ‘We Want You . . . But only if you’re straight.’”
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