Despite efforts by 31 law schools, legal experts believe that the Supreme Court will uphold a law requiring universities to provide access to military recruiters or lose federal funding.
The Forum for Academic and Institutional Rights, an association of law schools, made its final arguments before the high court on Tuesday in a case challenging the constitutionality of the Solomon Amendment.
Many law schools have said that giving the military access to students contradicts the schools' nondiscrimination policies due to the military's "don't ask, don't tell" policy regarding homosexuality.
While Penn's Law School is not part of FAIR, Penn professors are involved in a related challenge to the law, and are thus following the case closely.
Penn Law professor Theodore Ruger said it is unlikely that FAIR will win.
"Based on my study of the current Supreme Court and based on the justices, the court will rule in favor of the Department of Defense. This is a court that has been willing to defer to the military" in the past, Ruger said.
He added that hundreds of cases, along with long-term studies and statistics, have shown that the court usually favors the government.
Penn General Counsel Wendy White said that it is not easy to challenge the military.
"I think we knew going into it that it would be a difficult argument for FAIR to make," she said.
Ruger added that the composition of the Supreme Court at the time of the decision will influence the outcome of the case.
He said that Justice Sandra Day O'Connor, who is retiring, is often a key vote and added that if O'Connor steps down before the decision is announced, the court will most likely tie 4-4.
The case will then have to be reargued once O'Connor's successor is confirmed by the Senate.
Whatever the outcome of the FAIR litigation, the case filed by Penn professors -- Burbank v. Rumsfeld -- relates more precisely to policies at Penn, as it relies on arguments specific to Penn Law.
Because no employer uses the Penn Law campus to recruit -- going through Career Services instead -- the faculty members argue that the military is essentially getting equal access.
"We did not challenge [the military's] constitutional right to recruit," said Richard Berkman, a partner at Dechert LLP and a co-counsel representing Penn Law faculty in the Burbank case.
He added that the Supreme Court's decision in FAIR v. Rumsfeld will not control the outcome of the Burbank case.
"We are [arguing] that, even if the [Solomon Amendment] is constitutional, we are complying with it because we are not prohibiting the military from getting access to students," Berkman said.
Penn Law professor Stephen Burbank, the lead plaintiff in the Penn case, believes that FAIR's constitutional claims are not very strong compared to Penn's.
However, if FAIR were to lose the case at the Supreme Court, it might become more difficult to defend the Burbank case, which is currently on hold at the local district court, Burbank added.
The court's decision in the FAIR case will likely be handed down by June.
