New Twist in Solomon Case

Even if Harvard had chosen to forfeit over $400 million in federal funds this week in order to preserve the Law School’s nondiscrimination policy, Congress still could have forced the school to let military recruiters on campus.

The Solomon Amendment, initially passed by Congress in 1994, gives schools a choice: take federal funds and let military recruiters on campus, or forgo the money to protest the “don’t ask, don’t tell” policy.

But according to Supreme Court Chief Justice John G. Roberts Jr. ’76, in an ruling issued Monday, Congress doesn’t even need to give the schools a choice.

Harvard and other law schools require that employers sign nondiscrimination pledges—which include sexual orientation—as a condition for gaining access to the schools’ career placement offices. The military has refused to sign such pledges because it prohibits openly gay and lesbian individuals from serving.

Roberts wrote that Congress’ enumerated powers—those expressly delineated in the Constitution—give it the right to force universities to open their doors to military recruiters even if the universities don’t take federal funding. Among those enumerated powers listed in the Constitution, and cited by the court, are the powers “to raise and support armies” and “to provide and maintain a navy.”

“Congress’ power in this area ‘is broad and sweeping,’ and there is no dispute in this case that it includes the authority to require campus access for military recruiters,” Roberts wrote.

He also said that even though the power to raise an army is subject to limitations, Congress has broad powers in such matters.

“‘[J]udicial deference...is at its apogee’ when Congress legislates under its authority to raise and support armies,” Roberts wrote.

Loeb University Professor Laurence H. Tribe ’62, Roberts’ former instructor and a vocal critic of the Bush administration’s interpretation of the Solomon Amendment, wrote in an e-mail yesterday that there was “no doubt” that “Congress could indeed enact a law compelling universities to allow military recruiters on campus.”

Tribe wrote that a school’s right to bar recruiters and forgo federal funds “could be eliminated altogether if Congress chose to eliminate it.”

But he said that the approach the court took could actually benefit universities, and that if the court had relied solely on the “principle that whoever pays the piper gets to call the tune,” the government could impinge on a university’s freedom of speech by threatening to cut funding.

“[T]here might have been a risk that the Court [could hold] that, inasmuch as universities have no right to federal funding in the first place, they cannot complain of whatever deal the federal government offers, including a deal requiring universities to give up what the Court would concede were First Amendment rights,” Tribe wrote.

And based on this approach, Tribe said, the court could have dismissed the universities’ challenge to the Solomon Amendment “simply by saying that the plaintiffs cannot complain of a federal government offer that they are entirely free simply to turn down.”

Tyler Professor of Constitutional Law Richard H. Fallon agreed that there is “no doubt that Congress could directly require universities to grant access to military recruiters,” but said that there is little practical difference, as “it is clear that Harvard would not be willing to forego federal funding in order to keep military recruiters off campus.”

He said that he is “not inclined to think” that Congress would use its powers “to make other impositions on Harvard or other schools that those schools might think objectionable.”

He pointed out that in the written opinion, Roberts acknowledged that Congress’ power to raise armies is constrained by protections enshrined in the Bill of Rights.

“[I]t is also important to keep in mind that Roberts’ opinion makes clear that the power to raise and support armies is limited by other provisions of the Constitution, such as the First Amendment and presumably the equal protection component of the Fifth Amendment,” Fallon wrote. “In other words, there are still significant limits on what Congress could do.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.