A Better Way To Fight The Solomon Amendment

Although The Crimson, and Harvard students, alumni and law school faculty members, have all denounced the University’s decision not to join a constitutional law suit challenging the Solomon Amendment (which threatens the cutoff of federal funds if military recruiters are barred from campus) there is something they can do by themselves which may be far more effective.

Since other law schools have already brought the suits, Harvard’s joining would seem to be largely irrelevant and mostly symbolic, adding at most some prestige, but nothing legally.

Moreover, the constitutional claims have been rejected both by the American Association of Law Schools (AALS) and by U.S. District Judge John C. Lifland who, in denying plaintiffs’ request for a preliminary injunction, shot down its basic free speech argument in very strong language. Lifland found that the Solomon statue “does not directly target speech…discriminate on the basis of viewpoint;” that its “interference with speech and other protected rights is incidental;” and that “law schools cannot ‘erect a shield’ against opposing public interests simply by asserting that the mere presence of an unwanted visitor would impair its message.” Additionally, he explained that in the view of the court, “if there is any expressive component to [military] recruiting, it is entirely ancillary to its dominant economic purpose,” and that “the Solomon Amendment does not unconstitutionally infringe Plaintiffs’ free speech and associational rights.”

Given the clear and strident opposition that has been voiced, even at this level, to the constitutional challenge, it is time to look to other legal avenues for challenging Solomon. The District of Columbia’s Human Rights Act (HRA)—the strongest civil rights law in the country—provides an alternative or additional legal avenue that could be much more promising and would have implications nationwide. Rather than seeking to strike down a federal statute on constitutional grounds, something judges are very reluctant to do, an HRA-based challenge, which can be brought whether or not Harvard University itself agrees to participate, only asks that the statute be interpreted according to its clear language—an interpretation which Judge Lifland’s decision strongly supports. Additionally, through this avenue, the defendant would not be the federal government, which is likely to defend the statute vigorously, but rather a law school that is on record as opposing the Solomon Amendment.

The HRA prohibits universities from providing any assistance whatsoever to entities and their recruiters which discriminate on the basis of sexual orientation. The only exception is when such assistance is required by federal law.

But federal law—the Solomon Amendment—applies only if a university “prohibits, or in effect prevents” military recruiters’ entry to campus or “access” to its students. The crucial legal word choice is “prohibits, or in effect prevents,” because, as Judge Lifland’s decision explains, “Congress chose not to use language connoting anything less than a total or effective prohibition on the military’s recruitment efforts, such a ‘interfere,’ ‘hinder,’ ‘impede’ or ‘adversely affect.’” Congress deliberately did not use words like “impede,” “obstruct,” “hinder,” “thwart,” “inhibit,” “frustrate,” etc.; i.e., words which if used would indicate a broad and flexible prohibition on any adverse actions schools might take aimed at military recruiters, such as failure to actively cooperate.

Moreover, the statute on its face certainly does not require or even suggest that military recruiters must be treated or accommodated in substantially the same way as other recruiters. Indeed, Congress deliberately chose not to use such language, even though precisely that language was employed in a similar statute related to access by military recruiters to secondary schools.

In short, unless a law school “prohibits, or in effect prevents” military recruiters from gaining entry to campuses or access to students, it is in full compliance with the Solomon Amendment, and any aiding or abetting of their recruiting efforts isn’t required by federal statute, and therefore is illegal under the HRA.

Refusing to actively cooperate with military recruiters—by not collecting law student resumes, not assisting in scheduling interviews, not posting law school notices of their availability, not setting aside interview rooms, etc.—does not deny or effectively prevent military recruiters access to a campus or its students. Therefore it would seem that when law schools in Washington go out of their way to cooperate by providing military recruiters with additional assistance beyond mere “access,” their actions are illegal under the HRA, and they can be sued for injunctive relief, damages and even attorneys’ fees.

Using this approach, rather than having the difficult burden of having to prove that a federal statute is unconstitutional, someone bringing an action under the HRA against a law school in the District would have to show only that the Solomon Amendment doesn’t require universities to actively assist and cooperate with military recruiters.

This is the conclusion that Judge Lifland reached when he noted that the phrase ‘in effect prevents’ refers to “virtually keeping the military from recruiting students or posing obstacles that would normally lead to abandonment of the recruiting efforts.”

A legal action brought under the HRA could easily persuade law schools in D.C. to stop actively cooperating with the military. Moreover, since most of the area law schools seem to oppose military recruiting in principle, they might be willing—once a formal legal challenge were filed, and they faced the prospect of damages and attorney fee awards—to enter into a consent decree prohibiting their active cooperation with military recruiters.

But such a challenge would have wide-reaching ramifications beyond the District. If this settlement agreement were approved by a judge, it would not only make it very difficult for the military to pressure laws schools in Washington into providing any recruiting support and assistance, but also strengthen the argument—and establish a legal precedent—that the Solomon Amendment doesn’t require law schools anywhere to provide active cooperation or assistance to military recruiters.

Harvard’s law students and faculty could help prepare a class action lawsuit to be filed in court on behalf of one or more Washington area law students or law faculty willing to serve as plaintiffs. Alternatively, the HRA permits anyone, regardless of residence or sexual orientation—such as any Harvard law student or professor—to file an administrative complaint to achieve the same goal.

In short, Harvard students and faculty need not simply complain about University President Lawrence H. Summers’ decision not to join the FAIR lawsuit. There is something important and effective that they themselves can do about the Solomon Amendment—regardless of whether or not Harvard University agrees.

John F. Banzhaf III is professor of public interest law at George Washington University Law School.