Court Could Sidestep Constitutional Claims

The future of military recruiting at Harvard Law School hangs in the balance as the Supreme Court prepares to hear oral arguments in the high-profile Solomon Amendment case tomorrow morning.

In case you’ve tuned out three years of protests and press conferences on campus, here’s the issue in a nutshell: the Solomon Amendment, first passed by Congress in 1994, blocks federal funding for universities that limit military recruitment. It poses a dilemma for Harvard Law School, which requires all on-campus recruiters to sign a pledge saying they won’t discriminate against gays and lesbians. The military, which bars gays and lesbians from serving openly under its “don’t ask, don’t tell” policy, refuses to sign the pledge.

For Harvard, the financial stakes are enormous. If the court upholds the Solomon Amendment, Harvard would lose over $400 million in federal funds each year unless it continues to exempt the military from the nondiscrimination pledge.

The case now before the Supreme Court, Rumsfeld v. FAIR, pits the secretary of defense and five other cabinet officials against the Forum for Academic and Institutional Rights, a nationwide coalition of 36 anti-Solomon Amendment law schools. Harvard is not a member of the coalition, but the University has filed a friend-of-the-court brief backing FAIR, and half of the Harvard Law faculty has submitted a separate brief in the case.

In a move that reflects the case’s watershed significance, the Supreme Court announced last month that it will release audiotapes of tomorrow’s proceedings to news organizations immediately after oral arguments. The court has only arranged for the prompt release of audiotapes in a handful of landmark cases—beginning with Bush v. Gore in December 2000.

FAIR argues that the Solomon Amendment violates law schools’ freedom of association by forcing them to cooperate with military recruiters. The coalition also argues law schools have a “right to be free from government-compelled speech,” and that they can’t be forced to disseminate the military’s recruiting messages.

But the justices could avoid the complicated First Amendment issues by deciding the case on other grounds, and tomorrow’s oral arguments could provide an indication as to whether the high court will sidestep FAIR’s controversial claims.

IS IT EVEN A CONSTITUTIONAL CASE?

The 40 Harvard Law professors who filed a friend-of-the-court brief in September don’t think so. “[T]here is no way of deciding the Solomon Amendment’s constitutionality, either way, without venturing into uncharted terrain,” the professors wrote.

The text of the Solomon Amendment requires schools to give recruiters access to students “at least equal in quality and scope to the access...that is provided to any other employer.” Since all employers must comply with the nondiscrimination requirement, Harvard and other law schools can hold the military to this pledge without violating the Solomon Amendment, according to the professors’ brief.

But will FAIR’s lead lawyer, E. Joshua Rosenkranz, present the Harvard professors’ argument?

“The answer is almost certainly no,” according to Laurence H. Tribe ’62, the Loeb university professor at Harvard who was an organizer of the faculty’s brief and who has argued more than three-dozen cases before the high court.

“FAIR has steadfastly resisted our effort to avoid the constitutional showdown it seeks by pursuing the statutory path,” Tribe wrote in an e-mail.

According to a New York University constitutional scholar who is one of the named plaintiffs in the initial FAIR suit, Sylvia Law, “the arguments presented in the Harvard brief are not as strong as those presented by FAIR.”

The military and its supporters in Congress “actually want more than equal treatment; they want special treatment,” Law wrote in an e-mail. “Were the Court to adopt the statutory reading advanced by the Harvard brief, we can be pretty confident that Congress will quickly change the words.”

But the Harvard professors’ brief could still sway the justices—even if FAIR doesn’t raise the point. The dean of George Mason University School of Law and a prominent Solomon Amendment supporter, Daniel D. Polsby, wrote in an e-mail, “I would not be surprised if the Dellinger brief came up at oral argument.” (The lead counsel on the Harvard faculty brief is actually a Duke University professor, Walter E. Dellinger III, who served as the Justice Department’s top lawyer before the high court under President Clinton.)

The Harvard professors are bound to hold some sway with the justices. After all, six of the current justices attended law school here—including Chief Justice John G. Roberts, Jr. ’76, who once took Tribe’s constitutional law class.

IS THIS A NATIONAL SECURITY CASE?

Meanwhile, the government’s lawyers will contend that the Solomon Amendment is necessary “in order to recruit the most talented men and women into the armed services,” as they argued in a brief filed this past July.

The court historically has granted extra deference to the military. And according to Polsby, the stipulations of the Solomon Amendment are far less onerous than, say, the military draft.

But according to a September brief from FAIR, “the courts traditionally defer to the military” only on “complex, subtle, and professional” decisions regarding issues such as strategy and training. By contrast, a court of nine law school graduates is “perfectly competent” to decide whether the military needs campus access “in order to attract the attention of brilliant young lawyers.” FAIR will argue that the Solomon Amendment is unnecessary for that purpose.

Government attorneys “have not offered a speck of evidence that on-campus law school recruiting helps them at all,” according to Law, the NYU scholar.

But government lawyers could cite a friend-of-the-court brief filed by two former defense secretaries, four admirals, and 20 generals—including former presidential candidate Wesley K. Clark and two former chairmen of the Joint Chiefs of Staff—testifying that the Solomon Amendment is “essential” to the military’s mission.

“The daily news about the military’s difficulty in recruiting does not create a good atmosphere for us,” Law acknowledged.

Law and the other plaintiffs hope that—rather than deciding the case on statutory or national security grounds—the justices tackle FAIR’s innovative First Amendment arguments head-on.

But many legal experts fear that if FAIR wins a “constitutional showdown,” the high court might also scrap other laws that place conditions on schools that take federal funds—such as the 1964 Title VI statute barring racial discrimination, and the 1972 Title IX law against sex bias.

Among Harvard law professors, the first fear is that FAIR might lose—and military recruitment will continue.

The second—and perhaps more daunting—fear is that FAIR might actually win.

­­—The next installment in The Crimson’s two-part Rumsfeld v. FAIR preview will explore the far-reaching ramifications of FAIR’s First Amendment arguments.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.