With the University facing the loss of as much as $500 million in federal funding, Penn Law professors say they may abandon a case they filed against the Department of Defense.
They originally filed the complaint, Burbank v. Rumsfeld, to protest a law requiring the school to admit military recruiters to campus.
Penn Law professor Stephen Burbank, the primary plaintiff in the case, said that while the point being argued by Law faculty is a reasonable one, the faculty must decide whether it is feasible and affordable for the University to continue its litigation.
Burbank v. Rumsfeld was filed in 2003 after Penn was threatened with large fines under the Solomon Amendment, a law that stipulates that schools must allow military recruiters the same access to students as any other employer or risk the loss of federal funding.
A court placed Burbank v. Rumsfeld on hold pending the outcome of a separate challenge to the Solomon Amendment by a group of law schools -- called the Forum for Academic and Institutional Rights -- that challenged its constitutionality. The Supreme Court ruled against FAIR last month.
That ruling set a precedent that could make the Penn case more difficult to win, though the challenges are not on the same grounds.
Lawyers for FAIR argued that the Solomon Amendment was unconstitutional because the military's "don't ask, don't tell" policy regarding homosexuality violated school's nondiscrimination policies and First Amendment rights.
Penn Law professors contend that the Law School is already complying with the statute by allowing the military to recruit via Career Services.
Because FAIR lost its case, the University faces funding cuts if the Law School does not admit military recruiters to campus.
An informational forum was held yesterday in Silverman Hall to discuss the consequences of Rumsfeld v. FAIR, specifically for Penn Law's own litigation.
Penn Law professor David Rudovsky -- one of the main lawyers in Burbank v. Rumsfeld -- said the FAIR decision was "a perfect storm against us," with the Supreme Court voting more conservatively than usual.
Burbank added that the wording of the Supreme Court decision may make it harder for Penn Law to argue that it already treats military recruiters fairly.
Other university law schools have filed suits similar to Penn's. Yale Law School faculty are embroiled in litigation of their own after being threatened with $300 million in fines.
Yale Law professor Peter Schuck said that while "don't ask, don't tell" is a "perverse" policy, the cases brought by the Law schools are unlikely to succeed.
"The school's arguments are pitifully weak. ... The schools should treat military recruiters like every other employer that complies with the law," he said.
Dropping the case? - Law School professors may drop their lawsuit, Burbank v. Rumsfeld, filed to protest a law requiring the school to admit military recruiters - The suit was on hold pending the result of a separate case arguing against the law - The Solomon Amendment was upheld last month, hurting the Penn professors' chances
