University Law School professors and students who are engaged in a lawsuit against the Department of Defense over the issue of on-campus military recruiting recently had their case move one step closer to trial.
An Eastern District of Pennsylvania U.S. district court judge ruled on Aug. 26 against the Penn coalition's motion for summary judgment -- which would have decided the outcome of the case without a trial -- and dismissed two counts from the suit.
Judge John Fullam said that it would have been premature to rule on the suit's remaining claims. He did, however, deny the DOD's motion asserting that the group of students and professors lacked the standing to bring suit.
The suit, known as Burbank v. Rumsfeld, was first brought in response to the Solomon Amendment of 1996 that requires universities to allow military recruiters on campus. The act states that universities must give military representatives the same access to students that private companies receive, in order to receive certain federal funding.
The group of students and professors bringing the suit claim that the military's homosexual conduct policy is in conflict with the University's non-discrimination policy. Therefore, the group says, the school should not have to grant military recruiters equal access to students on campus.
"Overall, the [Aug. 26] decision was helpful to us," said David Rudovsky, the Penn Law professor who is representing the University group. He added that the two claims that were dismissed were "not central to our case. ... Our main claims are intact."
One of the dismissed charges challenged an exemption from the Solomon Act granted to pacifist schools -- including some religious institutions -- while the other count challenged the military's homosexual conduct policy.
However, Alcides Ortiz, director of the DOD's Office of Legislative Counsel, said that the case is still in its preliminary stages.
"This was key in terms of the claims the court dismissed, but not in terms of the claims they didn't dismiss -- those are issues that the court will revisit," Ortiz said.
He added, "The plaintiffs in this case have attempted to link the homosexual conduct policy to the Solomon Amendment. One thing doesn't have anything to do with the other."
The Forum for Academic and Institutional Rights, a coalition of about 15 law schools from across the country, has filed a similar suit in New Jersey against the DOD. One of the suit's main issues is still pending in a court of appeals.
Because the FAIR case is being heard in the same Federal Circuit appellate court, it will likely have bearing on the Penn case.
According to Rudovsky, the FAIR case "raises the same constitutional claims that we raise, that the constitution protects a law school's anti-discrimination policy."
"We sustain that the plaintiffs in this case can enjoy their freedom of speech on campus without limitation, even with the presence of military recruiters," Ortiz said.
He added, "We need to be treated the same as other employers. We don't want to be discriminated against because we're the military."
A similar case is being brought at Yale University, where many of the same arguments are being made. There, the case is still pending before a district court judge.
