Court to rule on “Solomon Amendment”
on May 2, 2005 at 10:00 am
The Supreme Court agreed on Monday to rule on the constitutionality of the “Solomon Amendment,†the federal law that requires the cutoff of federal funds to colleges that refuse to give military recruiters equal access to their students. The government took the case to the Court with a strong argument that its power to wage war will be impaired if college campuses – in this case, law schools – do not admit recruiters from the armed services, and give them the same aid that other recruiters get.
Law schools across the country have banned military recruiters because of the government’s ban on openly gay individuals in the military services. Law schools have long followed a policy of non-discrimination on the basis of sexual orientation, and have barred potential corporate and other recruiters for employers who discriminate against gays.
The case of Rumsfeld v. Forum for Academic and Institutional Rights, et al. (docket 04-1152) will be heard and decided in the next Court term. The Third Circuit last November barred enforcement of the Solomon Amendment, finding it likely that challengers would win on their First Amendment challenge. The Circuit Court, however, stayed its ruling pending the government appeal to the Supreme Court.
The petition raises this question: “Whether the court of appeals erred in holding that the Solomon Amendment’s equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?”
That case has not yet gone to trial, but the Court granted review nevertheless. The Solomon Amendment has been struck down in a separate case in a final order by U.S. District Judge Janet C. Hall of Bridgeport, Conn. The judge barred enforcement of the Amendment against Yale University, in a case filed by a majority of the Law School faculty. On April 26, the members of the faculty filed a petition for review in the Supreme Court (Burt v. Rumsfeld, 04-1434), asking the Court to hear and decide the case before the 2d Circuit reviews it. That case may be held for the ruling in the government’s appeal.
The Court also granted review on Monday of LaMarque v. Chavis (04-721), another case on the suspension of the one-year filing deadline for federal habeas petitions. The question presented is: “Did the Ninth Circuit contravene this Court’s decision in Carey v. Saffold [2002] when it held that a prisoner who delayed more than three years before filing a habeas petition with the California Supreme Court did not ‘unreasonably’ delay in filing the petition — and therefore was entitled to tolling during that entire period — because the California Supreme Court summarily denied the petition without comment or citation, which the Ninth Circuit construes as a denial ‘on the merits’?”
In another order issued Monday, the Court ordered the Sixth Circuit to reconsider a ruling last July 27 that it is unconstitutional for a state to arrange high school girls’ sport seasons at different times of the year from boys’ seasons, when that puts the female athletes at a disadvantage. The order came in Michigan High School Athletic Association v. Communities for Equity, et al. (04-1021). The Sixth Circuit based its decision on the equal protection clause of the Fourteenth Amendment.
The Circuit Court was told to examine that ruling in the wake of the Supreme Court’s March 22 decision in City of Rancho Palos Verdes v. Abrams (03-1601). The Court said there that a civil rights lawsuit under Section 1983 cannot be pursued when a federal law provides an exclusive judicial remedy for violations of a federal statute. That case involved the Telecommunications Act. The Michigan high school sports case involves Title IX.
The Michigan association, in taking the case to the Supreme Court, sought to raise the Title IX issue as well as the equal protection question decided by the Sixth Circuit. The other side argued that the Title IX issue was not present, since it said the association did not raise that issue below and, in addition, had claimed that it was not covered by Title IX.
Among the cases denied review, without comment, were these:
EMC Mortgage Corp. v. Stark (04-1056), challenging on due process grounds an arbitrator’s award of punitive damages in a mortgage collection case. The punitive award was 3,000 times higher than the award of ordinary damages — $6 million, compared to $2,000.
Safe Air for Everyone v. Meyer, et al. (04-1055), asking the Court to clarify when recycled waste material from a business is to be considered “solid waste” that must be disposed of safely under the Resource Conservation and Recovery Act. The case involved burning of grass by Idaho farmers after they had harvested it for bluegrass seed. The burning raised large clouds of smoke and particles.
