With several law schools now suing the United States Department of Defense, attorneys, professors and students from across the country are hoping to bring an end to forced discrimination on law school campuses.
So far, separate suits have been filed by professors from the Penn and Yale law schools, as well as from the Forum for Academic and Institutional Rights, a group of about 15 law schools from across the country.
Joining with FAIR is the Society of American Law Teachers, a progressive association of law professors from over 150 law schools across the country.
Now, as a group of Harvard Law School professors is reported to be bringing a similar suit against the DOD, U.S. Secretary of Defense Donald Rumsfeld is facing attacks in three circuits and from schools whose law school funding regularly reaches into the hundreds of millions of dollars each year.
The suits are being brought in response to legislation known as the Solomon Amendment, first passed in 1995. Under the amendment, universities are not eligible to receive federal funding unless the military is allowed to recruit on their campuses. The military must be afforded the same access to students as all private employers.
According to Robert Burt, a professor at Yale Law School who is involved with the group of professors filing the suit there, "approximately 75 percent of [Yale's federal funding] goes to the medical school, and the primary purpose of the money... is going into cancer research."
However, since the military's "don't ask, don't tell" policy on sexual orientation is discriminatory against gays, recruiters normally would not be allowed to recruit on schools whose nondiscrimination policy includes sexual orientation.
The FAIR suit relies on a constitutional argument. Since the amendment interferes with each school's ability to exercise its nondiscrimination policy, the litigants are citing an infringement upon their First Amendment rights to free speech.
The Penn and Yale suits are similar to each other, bringing in school-specific arguments in addition to the broader constitutional arguments of the FAIR case.
Burt, one of 45 Yale professors involved in the suit, explained the advantages of a school-specific argument.
FAIR is "saying that under no conceivable construction can the Solomon Amendment be constitutional," he said. "They have a harder burden of persuasion than we do" with the school-specific claims.
Those claims from the Yale and Penn professors will try to prove that the schools had always been in compliance with the Solomon Amendment, despite the DOD's complaints.
Regardless of the different approaches by each school, they could potentially impact each other in terms of forcing the case to go to the Supreme Court.
According to Stephen Burbank, a Penn Law School professor involved in the case, the chances of such a Supreme Court review are "very, very slim" for any case, but Burt explained three possible scenarios that could lead to the cases' review in the nation's highest court.
Since the FAIR, Penn and Yale cases are in two different circuits, if there is a disagreement between circuits, there is a "90 percent chance the Supreme Court would take it," Burt said.
If the circuits both rule against the government, there is some chance that the Supreme Court might look at the case, and the smallest likelihood is if both circuits rule against the law schools, he explained.
Most likely though, the cases will be settled out of court, with motions for judgment determining the outcome of each of the cases.
Currently, the FAIR case is in the process of appeal after a motion for a preliminary injunction was filed by FAIR. The injunction would immediately prevent the military from recruiting on the campuses of FAIR schools, but can only be granted if FAIR is able to prove that "irreparable damage" will occur if military recruiting is not immediately stopped.
The judge also ruled against the DOD's motion for summary judgment against FAIR. If such a motion were granted, the case would be dismissed in its entirety.
Sharon Frase, an associate from the San Francisco-based law firm Heller Ehrman White & McAuliffe leading the FAIR-SALT case, explained that "the judge agreed that all of our clients had standing to bring the First Amendment claims, which was a really great victory."
However, the judge also found that the schools' First Amendment rights were "not sufficiently infringed" upon by the DOD's forced recruiting, she said.
If the appeals court rules in FAIR's favor and agrees that "on its face the law is invalid, there would be no further need to challenge the law in the district courts," Frase said.
Penn's case is also likely to be resolved outside of the courtroom.
"I doubt it'll ever get to trial," Burbank said. "It will almost surely be resolved" on a judgment about the merits of the case.
Regardless of the rulings in other cases, Burt continues to be hopeful that his case will succeed.
"I continue to be optimistic because I think justice is on our side, and I'm optimistic about the vindication of justice," he said. "That's why I teach law."
