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U.S. Court of Appeals for the Third Circuit/Amicus
Lawrence Lustberg, Philip Gallagher, Jonathan Hafetz/Gibbons Del Deo Dolan Griffinger & Vecchione
The ACLU-NJ filed a brief supporting law school professors and student organizations challenging the "Solomon Amendment," which requires that the Armed Forces get special access on public law school campuses for recruitment efforts.
The plaintiffs claim that the Solomon Amendment violates their free speech rights as (1) the law forces schools to violate their own non-discrimination policies which would include not providing access to the Armed Forces, which discriminates against gays and lesbians through the "don't ask, don't tell" policy; and (2) the students are being denied their ability to adequately receive that message the professors were trying to convey with the passage of the non-discrimination policies. The district court, however, denied the plaintiffs a preliminary injunction, finding that they were not likely to succeed in the case. The plaintiffs appealed. In addition to the question of succeeding on the legal claims, the government challenged the standing of the professors' organization on appeal because FAIR will not reveal its membership list, and challenged the standing of students to bring the case, because they can show no injury to their right to hear the professors' message. The friend-of-the-court brief in which the ACLU-NJ and numerous other civil rights organizations joined explains that the right of organizations (such as FAIR) to litigate on behalf of unnamed members or clients has long been recognized as an important aspect of the First Amendment right of association. Further, the students' inability to hear the message of others, and to use and enjoy an academic environment, are injuries sufficient to give the students standing in the case. The brief was submitted on January 12, 2004.
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