Forum for Academic and Institutional Rights, Inc. v. Rumsfeld, CIVIL ACTION NO: 03-4433 (JCL) (D. N.J. 11/5/2003)
| Decision Date | 05 November 2003 |
| Docket Number | CIVIL ACTION NO: 03-4433 (JCL). |
| Parties | FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, INC., a New Jersey membership corporation, SOCIETY OF AMERICAN LAW TEACHERS, INC., a New York corporation, et al. Plaintiffs, v. DONALD H. RUMSFELD, in his capacity as U.S. Secretary of Defense, et al. Defendants. |
| Court | United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey |
Andrew Dwyer, Esq., Dwyer & Dunnigan, LLC Newark, NJ, Attorneys for Plaintiffs.
E. Joshua Rosenkranz, Esq., Timothy P. Wei, Esq. Sharon E. Frase, Esq., Heller Ehrman White & McAuliffe, LLP New York, NY, Attorneys for Defendants.
Peter D. Keisler, Esq., Assistant Attorney, General Chrisopher J. Christie, United States Attorney, Vincent M. Garvey, Esq., Deputy Branch Director, Michael A. Chagares, Esq., Chief, Civil Division Assistant United States Attorney, Mark T. Quinlivan, Esq., Senior Trial Counsel, U.S. Department of Justice, Washington, DC.
Plaintiffs Forum for Academic and Institutional Rights, Inc. ("FAIR"), Society of American Law Teachers, Inc. ("SALT"), The Coalition for Equality ("CFE"), Rutgers Gay and Lesbian Caucus ("RGLC"), law professors Erwin Chemerinsky and Sylvia Law (collectively, "Law Professors"), and law students Pam Nickisher, Leslie Fischer, Ph.D., and Michael Blauschild (collectively, "Law Students") seek a preliminary injunction enjoining enforcement of the so-called Solomon Amendment a statute conferring authority on the United States Secretary of Defense to deny federal funding to institutions of higher education that prohibit or effectively prevent on-campus military recruiting. Plaintiffs contend that the Solomon Amendment is unconstitutional because it (1) conditions a benefit federal funding on the surrendering of law schools' First Amendment rights of academic freedom, free speech, and freedom of expressive association; (2) discriminates on the basis of viewpoint by promoting only a pro-military recruiting message and by punishing only those schools that exclude the military because they find the military's policy against homosexual conduct morally objectionable; and (3) violates the void-for-vagueness doctrine for lack of clear guidelines and for conferring unbridled discretion on military bureaucrats to decide which institutions to target and what acts or omissions amount to non-compliance with the statute. Defendants (collectively, "the Government") move to strike or, in the alternative, to dismiss Plaintiffs' Second Amended Complaint for lack of standing, and otherwise oppose the Motion for a Preliminary Injunction on the basis that the Solomon Amendment is a valid exercise of the Spending Clause that conditions federal funding on conduct unrelated to speech.
As discussed more fully herein, the Government's Motion to Strike will be denied because Plaintiffs obtained express leave of Court to file a Second Amended Complaint. The Government's Motion to Dismiss Plaintiffs' Second Amended Complaint for Lack of Standing will be denied on the basis that the factual allegations are sufficient to confer standing on all associational and individual plaintiffs.
Finally, Plaintiffs' Motion for a Preliminary Injunction will be denied on the basis that Plaintiffs have not established a likelihood of success on the merits of their constitutional challenges to the Solomon Amendment. As with all constitutional challenges to legislation, the question is not whether the Court believes that the legislation is wise or unwise, or even fair or unfair. Those are value judgments which can and do vary from time to time, from person to person, and from issue to issue. The question is whether Congress, a co-equal branch of our government, has overstepped the boundaries prescribed, albeit in general terms, by our Constitution. Those boundaries have been made clearer by centuries of experience with case-by-case development of constitutional doctrines. Application of those doctrines, as explained in the cases cited, to the facts of this case, has led the Court to the conclusion that the compulsion exerted by the Solomon Amendment, as an exercise of Congress' spending power and its power and obligation to raise military forces, on balance, is not violative of the First Amendment rights of free speech, expressive association, and academic freedom where that compulsion operates primarily to compel or limit conduct, not speech or expression, and where, to the extent speech or expression is diluted, it can be readily and freely reconstituted, thus preserving the message for propagation by all who wish to express it and to all who may hear it.
Plaintiff FAIR, an association of law schools and law faculties, is a membership corporation organized under the laws of the State of New Jersey. Membership is open to law schools, other academic institutions, and faculties that vote by a majority to join. FAIR's stated mission is "to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education." (Second Amended Complaint ¶7(a) [hereinafter "Am. Compl."]). With few exceptions, FAIR membership is kept secret. (Am. Compl. ¶7(d)).
Plaintiff SALT is a New York corporation with nearly 900 law faculty members committed "to making the legal profession more inclusive and to extending the power of the law to underserved individuals and communities." (Am. Compl. ¶8). Plaintiff Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California Law School ("USC Law"), and Plaintiff Sylvia Law is the Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry at New York University Law School ("NYU Law"). Plaintiffs CFE, of Boston College Law School, and RGLC, of Rutgers University School of Law, (collectively, "Law Student Associations") are student organizations committed "to furthering the rights and interests of all groups including gays and lesbians." (Am. Compl. ¶ 9). Plaintiffs Pam Nickisher, Leslie Fischer, Ph.D., and Michael Blauschild are students at Rutgers University School of Law.
Defendant Donald Rumsfeld heads the Department of Defense ("DOD") in his capacity as the United States Secretary of Defense. The DOD is charged with implementing the Solomon Amendment and making the ultimate determination as to whether an institution is in compliance therewith. Defendant Rod Paige heads the Department of Education in his capacity as the United States Secretary of Education. Defendant Elaine Chao heads the Department of Labor in her capacity as the United States Secretary of Labor. Defendant Tommy Thompson heads the Department of Health and Human Services in his capacity as the United States Secretary of Health and Human Services. Defendant Norman Mineta heads the Department of Transportation in his capacity as the United States Secretary of Transportation. Defendant Tom Ridge heads the Department of Homeland Security as the United States Secretary of Homeland Security. The Departments collectively make available billions of dollars in the form of grants and federal contracts each year to institutions of higher education covered by the Solomon Amendment.
On Friday, September 19, 2003, Plaintiffs sought a temporary restraining order ("TRO") and preliminary injunction enjoining enforcement of the Solomon Amendment. The Court denied Plaintiffs' request for a TRO at a hearing held the same day. At the hearing, the Assistant United States Attorney informed the Court of a Government shut down in the District of Columbia due to Hurricane Isabel. Given the Government's inability to respond to Plaintiffs' voluminous submissions including an over-length brief and a three-inch thick bound volume of eighteen declarations the Court set a briefing schedule.
The Government timely submitted a Motion to Dismiss for Lack of Standing and Opposition to Plaintiffs' Motion for a Preliminary Injunction on Friday, September 26, 2003. Plaintiffs submitted a reply brief on Monday, September 29, 2003. During a telephone conference held later that day, the Court granted Plaintiffs' request to respond more fully to the Government's Motion to Dismiss and ordered both parties to further brief the impact on standing, if any, of FAIR's secret membership list.
The Court heard oral argument on Friday, October 10, 2003. At argument, counsel for Plaintiffs advised the Court that a First Amended Complaint had been filed earlier that morning. Counsel also indicated that he was prepared to file a Second Amended Complaint based on new information that a law school member of FAIR was willing to be publicly identified. The Court indicated that it would accept and direct the Clerk to file the Second Amended Complaint, subject to its verification. On October 15, 2003, Plaintiffs filed a Second Amended Complaint identifying two members of FAIR Golden Gate University School of Law and the Faculty of Whittier Law School. (Am. Compl. ¶7(d)). By letters dated October 15 and 17, 2003, Plaintiffs informed the Court that NYU Law and the Faculty of Chicago-Kent University School of Law had also agreed to be publicly identified as members of FAIR.
On October 22, 2003, the Government moved to strike or, in the alternative, to dismiss Plaintiffs' Second Amended Complaint for lack of standing. Plaintiffs submitted a responsive brief the following day.
The facts are drawn largely from Plaintiffs' Second Amended Complaint and declarations submitted in connection with Plaintiffs' Motion for a Preliminary Injunction. At this juncture, the Government has not challenged or substantially supplemented Plaintiffs' factual assertions.
The Solomon Amendment, in pertinent part, reads as follows:
(b) Denial of funds for preventing military recruiting on campus.—No funds described in subsection (d)(2) may be provided by contract or by grant ...
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