Rutgers University Senate
Equal Opportunity Committee
Status Report and Resolution on Charge S-0413, FAIR v. Rumsfeld Appeal
October 5, 2005
[Adopted by the University Senate October 21, 2005]
Charge to Committee:
In February 2005, the Equal Opportunity Committee (EOC) of the Rutgers Senate was given the following charge: Considering the November 29, 2004 decision of the Third Circuit Court of Appeals regarding the case of the Forum for Academic and Institutional Rights (FAIR) v. Rumsfeld, revisit the issues addressed in the University Senate’s reports/resolutions on FAIR v. Rumsfeld and on Federally Mandated Discrimination Based on Sexual Orientation in ROTC Programs (S-0413). On March 29, 2005, the EOC issued a report stating that it would wait to learn whether the U. S. Supreme Court would hear the case, and in the event that it would, the EOC would reconsider the matter at that time and decide what action to recommend to the Senate.
According to the Solomon Amendment (1996), in order to receive specified federal funding, educational institutions were required to allow military recruitment and ROTC on campus, even if military policies toward lesbians, gays, bisexual, and transgender (LGBT) persons violated institutional policies and state laws prohibiting discrimination. FAIR, an alliance comprised of a group of law schools and law faculty members, brought suit in a New Jersey Federal District Court to enjoin enforcement of the Solomon Amendment. That court denied the injunction and dismissed the suit. FAIR appealed this adverse decision to the Third Circuit Court of Appeals and on November 29, 2004, the appellate court reversed the District Court and found the Solomon Amendment unconstitutional. In response, the U. S. government sought review by the U.S. Supreme Court, and the Third Circuit Court of Appeals had put its ruling on hold until the result of the requested review was determined.
On May 2, 2005, the U.S. Supreme Court decided it would hear the case on December 6, 2005.  However, until that time the Solomon Amendment remains in effect.

Rutgers University Senate and Rutgers Administration Actions:

When the case was before the N.J. District Court and in response to a motion of the EOC at the February 20, 2004 Senate meeting, the University Senate recommended that President McCormick ask the Board of Governors to have the University join FAIR in  their challenge to the Solomon Amendment. On March 25, 2004, President McCormick reported to the Senate that the Senate’s recommendation would be declined.

Conclusion/Status of Committee Action:

Now that we know the U. S. Supreme Court will hear the case on December 6, 2005, at the October 21, 2005 Senate meeting, the EOC will propose the following  resolution that the University make a public statement in support of FAIR in FAIR v. Rumsfeld.

Rutgers University Public Statement in Support of FAIR vs. Rumsfeld
October 2005

the Board of Governors amended the Policy on Equal Employment Opportunity and Affirmative Action (“non-discrimination policy”) in 1981 to include protection on the basis of sexual orientation and marital status; and
Whereas, the non-discrimination policy guarantees equal opportunities in hiring, promotion and job-related benefits for employees and equal treatment in University programs for all students; and
Whereas, the University Senate has passed three resolutions in the past 10 years urging full implementation of its non-discrimination policy; and
Whereas, it is incumbent upon the University to provide moral leadership in the cause of human rights by exercising every option within its power to enforce its non-discrimination policy; and
Whereas, the equal rights of lesbian, gay, bisexual and transgender (LGBT) students are jeopardized because the Solomon Amendment requires the University to suspend its non-discrimination policy with respect to recruitment efforts of the Department of Defense; and
Whereas, the Solomon Amendment compels the University to lend its resources, personnel, and facilities to an employer (the U.S. military) that continues to discriminate based on sexual orientation in its hiring practices.
Whereas, the law suit FAIR v. Rumsfeld provides an opportunity for the University to make important strides in fulfilling its commitment to non-discrimination;
Whereas, FAIR v. Rumsfeld will be heard by the U. S. Supreme Court on December 6, 2005;
Therefore, be it resolved that the Senate urges the President and the Board of Governors to make a public statement on behalf of Rutgers, The State University of New Jersey in support of FAIR’s effort to get the Solomon Amendment overturned.

Respectfully submitted,
Michael C. LaSala and Connie A. Ellis
Co-Chairs, Equal Opportunity Committee
Rutgers University Senate