Experts Debate Army Recruiters

Two legal experts on opposing sides of the Solomon Amendment controversy converged at Harvard Law School (HLS) yesterday to debate the constitutionality of the 1994 statute.

Kent Greenfield, a professor at Boston College Law School, joined John C. Eastman, a professor at Chapman University School of Law for a debate in Pound Hall sponsored by the HLS Federalist Society.

The Solomon Amendment gives the Secretary of Defense the authority to block federal funds to any university that “either prohibits, or in effect prevents” military recruitment on campus. Its constitutionality will be the subject of Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), which will go before the Supreme Court in December.

Greenfield, who is also president of FAIR—a coalition of over 30 law schools and other institutions—reiterated his group’s contention yesterday that the Solomon Amendment violates the Law School’s right to free speech and association.

“In effect, the Solomon Amendment is one of the most aggressive attempts on the part of Congress to restrict the exercise of Constitutional rights,” Greenfield told the packed room of nearly 100 people.

Eastman, who filed a friend-of-the-court brief in July supporting the Solomon Amendment, called the dispute an issue of “fundamental moral principle.” He countered the arguments of a friend-of-the-court brief filed by a group of 40 HLS professors, calling their argument against the Solomon Amendment “too clever by half.”

He added that a “compelling argument” could be made that the government’s “don’t ask, don’t tell” policy—which prohibits gay men and lesbians from serving openly in the military—only discriminates against homosexual behavior, not specifically a gay person’s identity.

“There is a serious argument to be made that this is not invidious discrimination going on at all,” he said. “That distinctions based on the conduct people choose to engage in is not the same as discrimination based on the color of one’s skin.”

Eastman added that he thought the government, and therefore, the armed services, should be considered a unique employer at the Law School because it provides Harvard with more than $400 million in grants each year.

“Harvard is not being forced to accept that grant...it’s not compelled speech. But if they take that grant with that condition, they are obligated to that condition,” he said.

Greenfield responded to Eastman’s argument with a list of possible conditions he thought the government might freely attach to grants if it were given free rein.

“So what’s the next law likely to be?” he asked. “A condition on your student loan that says that you are not to protest on the Iraq War during your time in school. Or a welfare benefit conditioned on your wearing a “W” button?”

In a question-and-answer session, Greenfield addressed concerns that overturning the Solomon Amendment could nullify other government statutes, including Title IX.

“In this case, law schools are the ones that are fighting against discrimination and the government is the one that is forcing us to be a conduit for discrimination,” he said. “It would be a difficult doctrinal move to then say if we win, then it’s a violation of the First Amendment any time any institution wants to disagree with a government restriction.”

Sandra E. Pullman ’02-’03, a first-year law student, said she was surprised by Eastman’s argument in support of the “don’t ask, don’t tell” policy.

“Personally, I found it absolutely shocking that he would claim that this is discrimination against conduct versus identity, when claiming your identity as a gay man is enough to get you kicked out of the military,” she said.

Christian R. Jenner, a second-year law student, said he was surprised at the “civility” of the event, given the divisive issues being discussed.

“I thought it was a credit to both people that it stayed on the issues and focused on the legal questions,” he said.

—Staff writer Javier C. Hernandez can be reached at jhernand@fas.harvard.edu.