Lifland’s ruling in the FAIR and SALT case could provide a boost to other groups challenging the statute, Solomon Amendment opponents said.
“The decision to recognize the plaintiffs’ standing is important, and the denial of preliminary relief is no surprise and is not discouraging,” said Professor of Law Janet Halley, an outspoken critic of the Pentagon’s policy and an expert on the military’s treatment of gays and lesbians.
Although Lifland’s ruling does not bind the New Haven and Philadelphia courts, according to Greenfield, “judges in the other cases will undoubtedly look at the opinion in this case and will very well use it as a guide in those cases.”
Plaintiffs and lawyers in the other anti-Solomon Amendment suits have criticized FAIR’s legal strategy, arguing that the coalition’s motion for preliminary relief was excessively risky and undermined the overall case.
“They should be celebrating tonight,” Greenfield said of the other plaintiffs.
Lifland’s opinion contained several other bright spots for the anti-Solomon Amendment movement, Greenfield said.
First, according to Greenfield, “the judge recognized that the Defense Department has been misinterpreting the Solomon Amendment for the last 18 months.”
Until 2002, law schools achieved compliance with the Pentagon’s mandate by allowing JAG limited access to campuses. HLS permitted recruiting only through the HLS Veterans Association, a student group.
But HLS and other institutions moved to include JAG in official recruitment programs last year after Rumsfeld threatened to block all federal funds to universities that limited the armed services’ access.
Wednesday’s ruling suggested a return to the pre-2002 status quo, Greenfield said.
According to Lifland’s 89-page opinion, “anything short of preventing or totally thwarting the military’s recruitment efforts does not trigger funding denial pursuant to the statute.”
Second, Lifland wrote that universities should only stand to lose Pentagon funding—rather than all federal appropriations—if their law schools flout Solomon Amendment regulations, Greenfield said.
The subtle disparity between Lifland’s conclusion and Rumsfeld’s contention could mean a difference of hundreds of millions of dollars for institutions that challenge the statute.
Third, according to Greenfield, Lifland rejected the Pentagon’s argument that FAIR loses its standing because its membership remains anonymous.
Five FAIR participants have identified themselves publicly, including the New York University and George Washington University law schools, Greenfield said.
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