Monday, July 27, 2009
A three-judge panel of the D.C. Circuit ruled last Friday that Young America's Foundation (or "YAF"), a group "committed to ensuring that young Americans understand and are inspired by . . . the importance of a strong national defense," lacked standing to sue to compel the Secretary of Defense to withhold funds from the University of California Santa Cruz under the Solomon Amendment. YAF argued that protesters at UCSC prevented or disrupted military recruiting on campus.
The panel held that YAF failed to allege redressability; it wrote,
YAF's task was to allege facts sufficient to show it is likely the Secretary's withholding or threatening to withhold federal funds would enable YAF's members to meet with military recruiters at on-campus job fairs. . . . This it has not done. . . .
[T]he Solomon Amendment leaves the University "a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds." Rumsfeld v. Forum for Academic & Institutional Rights, Inc. Based solely upon its allegation that UCSC received $80 million in federal funds in 2005 and receives "tens of millions" every year . . . YAF argues it is not speculative what the University would choose and "there is 'little doubt' that UCSC's behavior would change" if the Secretary invoked the Solomon Amendment against it. . . . Merely showing UCSC's behavior would change in some undefined way is not enough, however . . . .
The panel also noted that UCSC has a written policy of providing equal access to military recruiters and that the school took some measures to equalize students' access to military recruiters.
The lower court also ruled that the Secretary's decision whether to enforce the Solomon Amendment was not reviewable under the APA. The D.C. Circuit did not address this.