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.
Background:
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.
RESOLUTION
Rutgers University
Public Statement in Support of FAIR vs. Rumsfeld
October 2005
Whereas, 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