Posted on 12/04/2005 7:07:16 PM PST by rface
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 Tuesday 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 Tuesday’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.
This case is the number 2 reason Spector delayed the Alito confirmation hearings. The number 1 reason is the abortion notification now in front of the court.
Alito will recuse himself from te actual decison, putting the Constitutionality of the decisions at risk.
Jerks.
Harvard doesn't have to allow recruters on their campus, since they are a private school.....but they know the price of this action......no constitutional issue....is there?
Does a government that distributes funding have the right to determine terms and conditions under which those funds are distributed?
Nobody has a RIGHT to federal funds. They have rights to life, liberty, and the pursuit to happiness, but they don't have a right to put their hands in the till.
It seems to me that that is the basic issue.
I am not an attorney, that may be self evident. However, I think the only cases that come before SCOTUS are those that deal with Constitutional issues.
Just enforce USC Title 18, Chapter 115 Sec 2388. Case closed.
What recruiters? The ones from our military or the taliban and the Iraqi insurgents?
Congress should simply remove this case from the Court's jurisdiction. Of course, that would take the balls to face down the Shrieking Eels on the other side of the aisle...
I don't see how they win this case. Gays are not a protected class in this country. Unless they start making up some equal protection garbage (which has been liberal courts' modus operandi for ages now), I don't see what grounds they have.
How are they going First Amendment on this one? Their freedom of speech is one thing, but having the government thrown off the premises because it does not Havard's own system of governance AND THEN demanding that funding should continue pushes this into some nebulous law-law ;) land.
well of course, you said it yourself, they just "make it up" so they can make law in a case like this. this case shouldn't even be before the court, its open and shut, congress made a law, its not abriding on anyone constitutional rights, it should be followed.
A supreme court that could make up a constitutional right to buggery, which reversed an earlier decision, could make a case for nearly anything, unfortunately. It's why we have to take our courts back from the judicial tyrants who are running them now.
because when you look at who actually runs the government apparatus in this country - its loaded top to bottom with ivy leaguers.
He who pays the piper picks the tune.
I hear military recruiters kidnap college students and send them straight off to fight in wars. /sarcasm
The Supreme Court has no authority under the Constitution to force Congress to give money to Harvard, or anyone else. To do so would be to usurp a power specifically granted to Congress by the Constitution. They can decide spending is unconstitutional, but can't decide not spending is.
bump
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