Solomon Amendment On the Docket

The Supreme Court announced today that it will hear the government's appeal of the 3rd Circuit decision that invalidated the Solomon Amendment. The law was challenged by a group of 25 law schools who opposed the military's Don't Ask, Don't Tell restrictions on gay service members. Solomon would pull federal funding from any school which restricts military recruiters on campus. Interestingly, the 3rd Circuit's decision cited the Supreme Court's decision that allowed the Boy Scouts to bar gay scoutmasters based on the group's right of free expression, and extended that right to law schools, which the court held have the right to bar discriminatory groups such as the military. The schools have specific policies barring discrimination based on sexual orientation.

The case is Rumsfeld v. Forum for Academic and Institutional Rights (docket 04-1152). The original case has not yet been tried. The challenge is to an injunction barring enforcement of the Amendment until the completion of the lower court trial. The lower court denied the injunction, but the 3rd Circuit found it likely that the plaintiffs (Forum) would win their case on the First Amendment claims. The 3rd Circuit's decision has been stayed until the case is heard at the Supreme Court next term.

The District Court's denial of preliminary injunction (and of the government's motion to dismiss) can be found at ACLU-NJ. The 3rd Circuit Court of Appeal's reversal can be found at the 3rd Circuit's website. The government's petition for cert. can be found at the Dept. of Justice.

In February, a US District Court in Connecticut found the Solomon Amendment to be constitutional, in a case brought by faculty members at Yale Law School.