Lawyers involved in a hotly contested case over military recruiting and gay rights on college campuses made their final arguments before the Supreme Court yesterday.
A group of law schools working together under the name Forum for Academic and Institutional Rights filed the FAIR v. Rumsfeld case against the Department of Defense are challenging the Solomon Amendment -- a law that allows the federal government to restrict funding for universities that bar military recruiters from campus.
Lawyers for FAIR argued that by forcing schools to adhere to military policy, the Solomon Amendment violates the universities' First Amendment rights and that the law is therefore unconstitutional.
Penn, whose Law School is not part of FAIR, also opposes the amendment, saying that the military's "don't ask, don't tell" policy regarding homosexuality requires Penn to violate to its own nondiscrimination policy.
The FAIR ruling will likely bear heavily on the outcome of a separate case filed by Penn Law professors challenging the law.
According to Penn's Lesbian Gay Bisexual Transgender Center Director Bob Schoenberg, the chance that FAIR will win is slim.
"You don't have anybody that is very optimistic that the [law] will be struck down," he said.
Penn submitted an amicus curiae brief along with six other institutions in September supporting FAIR's case, which was first filed in 2003 and was taken on by the Supreme Court this year.
The Penn Law case -- currently pending in appellate court and led by Penn Law professor Stephen Burbank -- is based on an argument that stands independent of the FAIR decision.
According to Penn Law professor David Rudovsky, who is also plaintiff in the Burbank case, if FAIR wins at the Supreme Court, then Burbank wins. If FAIR loses, there is still a chance that Burbank might win in a lower court.
Penn General Counsel Wendy White said that under the Solomon Amendment, Penn is coerced into violating its own nondiscrimination policy, denying the University free-speech rights.
If Penn opted to ignore the Solomon Amendment and forfeit federal funding, it would lose over $400 million annually -- money crucial for its research.
"The University will have a very big decision to make" if FAIR loses, Schoenberg said.
University President Amy Gutmann, however, said that Penn will remain in compliance with the Solomon Amendment if the statute is upheld.
FAIR lawyer Joshua Rosenkranz echoed many of Penn's arguments yesterday before the Supreme Court, saying that the Solomon Amendment violates the First Amendment rights of American universities.
In a move that many agree may cost FAIR the case, Rosenkranz directly contradicted the arguments in another amicus brief submitted in favor of FAIR's own side.
He argued that it is a violation of the Solomon Amendment for schools to issue a blanket rejection of discriminatory employers.
For the Defense Department, lawyer Paul Clement argued that the military has a right to preferential access to college campuses because the government pays for significant university research. Recruiters deserve equal access to students as a result, he said.
The Supreme Court will likely not rule on the FAIR case until June, according to White.
High court hearing - The Supreme Court heard arguments in a case involving military recruiters on college campuses - The law in question, the Solomon Amendment, requires colleges to admit recruiters or lose federal money - Separate case filed by Penn profs will likely be affected by court's decision, which will probably not be handed down until July
