A Philadelphia federal appeals court ruled yesterday that an amendment requiring law schools to allow military recruiting on campus or lose federal funding was unconstitutional.
In a 2-1 vote, the Third Circuit Court of Appeals ruled that a 10-year-old piece of legislation known as the Solomon Amendment violates schools' First Amendment rights, forcing schools to suspend their non-discrimination policies in order to receive government money.
Yesterday's ruling was a victory for the Forum for Academic and Institutional Rights, a coalition of 24 law schools and their faculty against the Department of Defense.
Penn Law professors and students, though not involved in the FAIR suit, have brought a very similar suit against the DOD, for which yesterday's ruling carries significant precedence.
The key claim raised by the plaintiffs in both lawsuits is that the military's homosexual conduct policy -- the so-called "don't ask, don't tell" policy -- is in conflict with the various universities' non-discrimination policies.
With the repeal of the Solomon Amendment, schools are immediately able to prevent the military from having equal access to students on campus without fear of losing funding.
The presence of military recruiters on campus forces "the law schools to send a message, both to students and the legal community, that the law schools accept employment discrimination as a legitimate form of behavior," according to the court's opinion.
"This is a big victory for law schools across the country," said Penn Law Professor David Rudovsky, who is representing the Penn Law School group in its case.
Rudovsky said, however, that "it's not over yet," and cautioned that he felt only "temporary vindication," as this new ruling could still be overturned.
The DOD could either ask the entire Third Circuit panel of judges to hear the case or attempt to appeal the decision to the entire U.S. Supreme Court.
Rudovsky would not speculate about the likelihood of the government having success in either of these avenues, saying that such matters are far too unpredictable to guess about.
He did, however, say that if the DOD appeals, the case could take up to 18 months to be resolved, especially if it goes to the Supreme Court. Should yesterday's ruling stand, though, it would mean a permanent end to the Solomon Amendment.
The DOD could not be reached for comment last night.
Though the Penn Law School group's lawsuit is very similar to the FAIR suit, one key difference is that the Penn Law group claims that it never violated the Solomon Amendment.
Yale Law School professors and students also have a similar suit pending.
