Harvard Profs’ Brief Could Still Sway Court

For a brief moment Tuesday, the Supreme Court appeared ready to rule that law schools can bar military recruiters from campus without losing federal funds.

Harvard law professors who oppose on-campus military recruitment—and their allies at other schools, including Yale and Duke—still say they stand a chance of winning a favorable verdict from the high court in the Solomon Amendment case.

Their hope rests on a close reading of the statute in question, a law mandating that schools receiving federal funds give military recruiters “equal access” to campus.

Harvard Law School and many of its peers require on-campus recruiters to pledge that they will not discriminate against gay applicants. But the military has refused to sign the pledge. A brief submitted to the high court in September by the former acting solicitor general, Walter E. Dellinger III, and 40 Harvard professors contends that the law schools’ policies don’t violate the Solomon Amendment’s “equal access” provision because all recruiters—not just the military—face the same nondiscrimination requirement.

“If Congress wants to carve out an exemption from antidiscrimination policies and require the universities to give special preference to certain recruiters, it ought to have to say so in the law,” Dellinger, who is now a professor of law at Duke, said in a phone interview from Chapel Hill, N.C., yesterday.

But this statutory argument suffered a severe blow before the high court Tuesday when the lead lawyer for the Forum for Academic and Institutional Rights (FAIR), the nationwide network of law schools that is challenging the Solomon Amendment’s constitutionality, directly contradicted the Harvard professors’ claims.

When Justice Stephen G. Breyer asked FAIR attorney E. Joshua Rosenkranz point-blank whether law schools that hold recruiters to the nondiscrimination pledge are violating the Solomon Amendment, Rosenkranz responded, “Yes, sir.”

Rosenkranz wanted the court to rule instead that the Solomon Amendment violates schools’ free-speech rights by forcing them to spread the military’s anti-gay message. But only one justice, David H. Souter ’61, seemed inclined to support FAIR’s constitutional arguments Tuesday.

”Mr. Rosenkranz has seemed determined to secure a decision on constitutional issues at any cost,” University of Pennsylvania law professor Stephen B. Burbank ’68, who is the Watson visiting professor at Harvard this semester, wrote in an e-mail yesterday. Burbank and his fellow Penn colleagues filed a separate anti-Solomon Amendment suit—in part because of concerns about Rosenkranz’s strategy, he said.

Rosenkranz did not return phone calls seeking comment last night.

The question that court watchers are now trying to answer is whether Rosenkranz’s statement effectively ended the chance that the Harvard professors’ brief would prevail.

“Rosenkranz killed the Harvard brief argument,” University of Mississippi law professor Paul M. Secunda ’93 said.

NOT DEAD YET

But that wasn’t the consensus throughout the anti-Solomon Amendment camp.

Dellinger said he was “pleased that five different justices at least raised the issue that was presented by our brief.”

The brief by Dellinger and the Harvard professors could be attractive to the justices because it would allow them to avoid tackling FAIR’s free-speech claims head-on.

As Breyer, a 1964 graduate of Harvard Law School, asked during oral arguments Tuesday, “Why not interpret the statute in the way that the amicus brief suggests in order to avoid the difficult constitutional question?”

The government’s lawyer, Solicitor General Paul D. Clement, a 1992 Harvard Law graduate, retorted, “I don’t think there’s a difficult constitutional question to be avoided here.”

Still, legal experts said, the court might feel inclined—and even obligated—to sidestep the free-speech issue by ruling on statutory grounds, as the Harvard brief suggested.

According to Laurence H. Tribe ’62, the Loeb University professor at Harvard, “Even when a constitutional question appears easy to answer, and when the parties agree on a reading of the statute that puts that question before the court, a truly restrained court would decline the invitation.”

A FAIR SHOT?

Since neither of the lawyers Tuesday pressed the Harvard professors’ brief, at least one of the justices would have to take up the statutory argument in discussions with his or her colleagues.

“I think it’s most likely that Justice Breyer would raise the statutory argument in the justices’ conference,” Yale law professor Robert A. Burt wrote in an e-mail. “Breyer took the clearest initiative in raising it with the solicitor general.”

Some of the more conservative members of the court might be swayed by the argument as well.

Tribe’s former student, Chief Justice John G. Roberts, Jr. ’76, in an appellate court decision last year, stated “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.”

“Not only Justice Souter, but also, possibly, Justice Breyer—and maybe even Justice [Sandra Day] O’Connor—could be attracted to the statutory argument,” Martha L. Minow, the Smith professor of law at Harvard who helped to organize the faculty brief, wrote in an e-mail. Minow was one of a team of Harvard Law professors who organized the filing of the brief among the faculty—along with Frank I. Michelman, who is the Walmsley University professor at Harvard, and David J. Barron ’89, who is a professor of law and a former Crimson president.

Burt wrote that “if I had been arguing for FAIR, I would have taken a leaf from Justice [Antonin] Scalia’s book of statutory interpretation” and argue that the court should look to the clear meaning of the Solomon Amendment’s text—and not only to Congress members’ intents.

But Breyer, Roberts, and Scalia all seemed to be openly hostile to FAIR’s free-speech case yesterday—suggesting that they might be eager to shoot down FAIR’s constitutional claims. And, as the dean of George Mason Law School, Daniel D. Polsby, noted in a phone interview yesterday, Souter “was not particularly interested in the Dellinger [statutory] argument at all.”

Moreover, even if the high court delivers a victory to the law schools on statutory grounds, Congress can simply change the Solomon Amendment to express its intentions.

But such a change might not be without political repercussions.

“Congress would have to say what they mean, and they might have a hard time doing that," Dellinger said.

Even if the statutory argument offered by Dellinger and the Harvard professors prevails—which it might not—Congress could respond by passing an more stringent version of the Solomon Amendment.

Still, the Harvard professors’ brief appears to be the last, best hope for gay-rights activists who want to keep the military off campus.

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