In the most recent development regarding the legal battle over military recruitment on campus, the U.S Department of Justice announced that it will take its appeal to the U.S. Supreme Court.
The battle hinges on the military's "don't ask, don't tell" policy regarding sexual orientation. Law schools around the country have sued the Justice Department, arguing that the policy does not conform with their own non- discrimination rules.
This weekend, government lawyers asked the Third Circuit Court of Appeals to prevent universities from changing their military recruitment policies until the Supreme Court decides whether or not it will hear the case.
In late November, a three-judge panel ruled that the 1994 Solomon Amendment, which required universities to allow military recruiters on campus if they wished to receive federal funding, was in violation of the First Amendment.
The government argues that, in the interest of military preparedness, it will need to recruit law students for the armed forces' judiciary branch during the time it takes the Supreme Court to reply to the government's request.
Penn Law Professor David Rudovsky, who is representing a group of Penn law professors and students in a similar lawsuit against the Department of Defense, said that he felt the government's claim was "very weak."
"There is no basis to claim that the military needs identical access to recruit law students," he said.
Over the years, universities, and law schools in particular, have struggled to reconcile their nondiscrimination policies with the military's "don't ask, don't tell" homosexual conduct policy.
After the passage of the Solomon Amendment, law schools generally allowed military recruiters on campus but did not give them the same access to students and resources as other employers.
In the aftermath of the terrorist attacks of September 11, Congress included a clause in a large appropriations bill demanding that law schools give the military equal treatment in recruiting students.
Lead counsel for the plaintiffs Joshua Rosenkranz said that the government's argument for ceasing enforcement of the Third Circuit Court's ruling was not supported by historical evidence. He believes if the Third Circuit Court's decision was allowed to stand, military recruiters would still be able to contact students on campus.
"When recruiters were not granted the same access to students and services, the sky did not fall," Rosenkranz said.
Normally, the Justice Department could have asked the full Third Circuit panel to review the case, but a number of circuit court judges were disqualified from such an undertaking -- in most cases because of some affiliation with law schools.
Whether the Supreme Court will agree to hear the case is very uncertain.
One of the main criteria for the Court hearing the case is if two or more federal circuit courts of appeals issue conflicting rulings on the same issue. Since this is not the case with the Third Circuit Court's ruling, Rosenkranz believes the chances of the Court taking on the case are slim.
If the case goes to the Supreme Court, Rudovsky said he believes it would involve the same major issues that characterized the Third Circuit Court's hearing.
"There will be the same arguments and the same balance of rights," Rudovsky explained. "It will deal with the government's asserted power to recruit students."
