The government’s failure to respond to the HLS professors’ claims could prove significant as the case progresses, according to Rosenkranz.

Bloomberg Professor of Law Martha L. Minow, who spearheaded the effort to file the HLS brief last month, agreed that the Justice Department’s choice not to respond to the faculty’s argument indicated a substantial weakness in the government’s case.

“If the government had a strong response to our position, they probably would have included it,” Minow wrote in an e-mail to The Crimson last night.

“In addition, the government brief does little with the legislative history, which might be because our brief—coupled with FAIR’s—exposes how the current [government] position bears little relationship to the legislative purpose of the Solomon Amendment,” Minow said.

The Department of Justice and the Pentagon declined to comment regarding the lawsuit.

With federal lawyers remaining tight-lipped, Tuesday’s brief offers a rare glimpse of how the government’s legal strategy is developing.

So far in the case, both sides have invested significant resources on the issue of standing, with government lawyers claiming that the plaintiffs are not in a legal position to file suit.

Government lawyers have argued that FAIR must disclose the names of its members schools.

FAIR—with the backing of a friend-of-the-court brief signed by the student gay rights group HLS Lambda, among others—sought to preserve its members’ anonymity.

But after New York University Law School and George Washington University Law School voluntarily identified themselves as members of the alliance, Justice Department lawyers told the appeals court Tuesday that the government would drop its challenge to FAIR’s standing.

“There was no way the government was going to win an argument on standing,” Rosenkranz said.

The Justice Department’s concession appears to be at least a partial victory for Lambda, which focused on the standing issue in its January brief but did not weigh in on the merits of the Pentagon policy itself.

But Lambda President Amanda C. Goad, a second-year HLS student, offered a tempered response to Tuesday’s developments.

“We continue to believe that students are being injured by the Solomon Amendment,” she said.

“BOLD PRONOUNCEMENT”