Originally published on Advocate.com November 08 2003 12:00 AM ET
A federal judge rejected a Defense Department bid to dismiss a lawsuit that seeks to prevent the government from withholding financial aid to colleges that refuse to allow military recruiters on campus. But while allowing the challenge to continue, U.S. district judge John C. Lifland refused to issue a preliminary injunction that would immediately prohibit the government from enforcing the 1996 Solomon Amendment, which directs the withholding of funds.
Lifland also gave little support to a law school coalition's assertion that the law tramples its members' First Amendment rights. He ruled that the Solomon Amendment is a valid use of Congress's spending power and obligation to raise military forces and that it outweighs free speech issues because it is aimed at compelling conduct, not expression.
The lawsuit was brought in September by law schools and law professors as well as the Rutgers Gay and Lesbian Caucus and individual students. They claimed that giving access to recruiters would violate
antibias policies at their institutions because the military discriminates on the basis of sexual orientation by prohibiting openly gay men and women from serving in its ranks.
The coalition will appeal the denial of the injunction to the 3rd U.S. Circuit Court of Appeals, said Kent Greenfield, a Boston College Law School professor and president of the Forum for Academic and Institutional Rights. However, the coalition was pleased that the judge read the statute narrowly. In its view, he rejected a broad Defense Department interpretation that over the past 18 months led to threats to cut off hundreds of millions of dollars to entire universities if their law schools did not comply, Greenfield said Thursday.
Lifland said the schools need not roll out a red carpet for the military nor provide the same amenities they give other recruiters. He found that "anything short of preventing or totally thwarting the military's
recruitment efforts does not trigger funding denial pursuant to the statute."
"The law schools are free to proclaim their message of diversity and tolerance as they see fit, to counteract and indeed overwhelm the message of discrimination which they feel is inherent in the visits of the military recruiters," the judge wrote in an 89-page ruling filed Wednesday.