A ruling handed down on Wednesday affirmed the legitimacy of a landmark case being brought against the Department of Defense on behalf of law schools and law school professors nationwide.
However, the Nov. 4 ruling also struck down an important motion brought by the plaintiffs.
The suit, presided by Judge John Lifland in the District of New Jersey, is being brought by the Society of American Law Teachers and the Forum for Academic and Institutional Rights. Together, the two institutions represent a nationwide group of law schools and professors who are eager to preserve the institutional freedom and integrity of their respective schools.
The suit was brought in response to the so-called "Solomon Amendment," which forces universities to allow military recruiters on campus if they wish to receive any federal funding.
By placing hundreds of millions of dollars at stake for each school, the Department of Defense is able to force its way into recruitment offices, even if schools have nondiscrimination policies that would normally prohibit the military from recruiting there.
The military's "don't ask, don't tell" policy is specifically targeted against gays and conflicts with the nondiscrimination policies of each law school involved in the suit.
In an attempt to bring an immediate -- if temporary -- end to forced military recruitment at the schools involved, FAIR and its attorneys at the San Francisco-based firm Heller Ehrman White & McAuliffe requested a preliminary injunction against the Department of Defense.
Though the injunction was denied, Lifland's refusal to offer summary judgment to the DOD indicates that the suit is on solid ground.
"We're delighted," SALT Co-President Michael Rooke-Ley said.
"We're not entirely surprised on the preliminary injunction. Obviously you hope for that, but the merits [of the case] remain alive," he continued.
In addition, FAIR and SALT will most likely appeal the ruling on the preliminary injunction.
In a press release from Heller Ehrman, the firm asserted its confidence that the judgment was mainly positive for the plaintiffs.
Lifland's "ruling clearly shows that the Department of Defense has been interpreting the Solomon Amendment incorrectly by requiring 'equal access' for military recruiters," the release said.
FAIR and SALT are led primarily by attorney E. Joshua Rosenkranz, who noted his optimism in the press release.
"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 in the statement.
He affirmed that they have "every intention of moving forward with an appeal."
In addition, Lifland's decision agreed with that of the plaintiff about the facts of the case, as he confirmed that the current implementation of the Solomon Amendment by the DOD is not within the dictates of the law.
According to Rooke-Ley, Lifland agreed that only DOD funding could conceivably be affected by the Solomon Amendment. As the law is currently applied, any funding a university receives from the government can be withheld if recruiters are not allowed on campus.
Bryan Tallevi, a second-year student at Penn Law School and a plaintiff for a similar suit brought by the Law School professors against the DOD, asserted his continuing optimism.
"We're still hopeful. It's obviously a disappointment," Tallevi said. "There's lots of other paths that can and will be taken."
Tallevi noted the fundamental differences between the Penn case and the FAIR case. While they rely on virtually the same constitutional argument, the Penn case is working to affirm that the University has been complying with the Solomon Amendment all along, while the FAIR case is interested in more directly tackling the legality of the amendment.
David Rudovsky, a professor at the Law School involved with the Penn case, also emphasized the differences between the FAIR case and that of the Law School.
"We've given the government access to students for recruitment purposes," Rudovsky said. "So we think we're in full compliance with the statute."
However, the ruling does have an impact on the Penn suit, he said.
"The ruling supports our claim that we have standing to challenge the Solomon Amendment," Rudovsky said. "We're going to proceed with our arguments." However, some are still wary of the language used in the decision as well as the nature of the decision itself.
"Having to violate our own nondiscrimination policy is an enormous infringement on our First Amendment rights and I was just kind of surprised to see that there was very little mention of that in the opinion," said Erica Flores, a second-year Law School student who is a plaintiff in the Penn suit.
Now that preliminary motions have been ruled on in the FAIR case, it is unclear when the case will move forward to the trial stages.
According to Rooke-Ley, the time frame depends on whether Lifland will await a ruling on the preliminary injunction appeal or whether he will begin the trial regardless of the status of the appeal.
The case is "all in the hands of Judge Lifland," he said.
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