The University filed a brief in a case against the Solomon Amendment, a law that allows the government to withhold millions of dollars of funding if universities refuse to allow military recruiters access to students.

The presence of those military recruiters, the brief says, requires the University to directly contradict its nondiscrimination policy.

On Dec. 6, the Supreme Court is scheduled to hear Rumsfeld v. FAIR -- a case brought by a group of U.S. law schools acting together under the name Forum for Academic and Institutional Rights -- against the Defense Department. FAIR contends that students' freedom of speech is compromised by the forced presence of military recruiters on campus.

The military's "don't ask, don't tell" policy for members of the lesbian, gay, bisexual and transgender community, FAIR believes, discriminates based on sexual orientation.

Yesterday, Penn filed an amicus curiae -- or "friend of the court" -- brief with six other prominent research universities on behalf of FAIR. The brief asserts that the Solomon Amendment prevents universities from determining their own antidiscrimination policies, undermining their academic freedom of speech.

And that, Penn says in the brief, is unconstitutional.

"It's an important priority for Penn because we have a policy that says that recruiters on our campus should not discriminate," Gutmann said.

More than 10 other groups -- ranging from the left-wing American Civil Liberties Union to the Christian Legal Society -- have filed amicus briefs in the case.

Penn's argument in the brief -- drafted by Washington law firm Wilmer, Cutler, Pickering and Hale -- hinges on its status as a prominent research institution.

Penn is dependent on millions of dollars in federal grants -- many from the National Institutes of Health -- for its research projects. If the University gave up its government money, Gutmann said, it could barely function.

Making those federal funds dependent on recruiters who allegedly discriminate, the amicus brief asserts, forces Penn to violate its own antidiscrimination policy.

"The Solomon Amendment infringes on the academic freedom and First Amendment rights of universities by imposing an unconstitutional condition on a university's ability to accept important federal research dollars," Penn General Counsel Wendy White wrote in an e-mail interview.

The outcome of the FAIR lawsuit in the Supreme Court has implications for several other cases that concern the Solomon Amendment, including one brought against the Defense Department by the faculty of the Penn Law School.

Penn Law professor Stephen Burbank is named in a similar suit -- Burbank v. Rumsfeld, currently pending in district court -- that uses a different argument to attempt to overturn the Solomon Amendment.

The status of the Burbank case is unclear because of statutory changes for military recruiting at the Defense Department. If FAIR wins its suit, Burbank's own case will likely be affected by the overturning of the Solomon Amendment.

Burbank, however, is planning to continue with his case regardless of the outcome for FAIR.

While the outcome of the case will only be clear next year, Gutmann is optimistic about the Supreme Court's willingness to hear Penn's concerns.

As the Solomon Amendment stands, "it's really limiting our freedom to express our opposition to this and giving us no choice" but to accept recruiters on campus, Gutmann said. "The Constitution prohibits conditions on federal funding that undermine academic freedom."

Taking a stand
Six other schools have joined in the brief against the Solomon Amendment:
- Columbia
- Cornell
- NYU
- Chicago
- Harvard
- Yale

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