TCS Daily


The Military, the Supreme Court and a Solomonic Judgment?

By Michael Rosen - May 6, 2005 12:00 AM

On Monday, the U.S. Supreme Court agreed to hear Rumsfeld v. Forum for Academic and Institutional Rights, the Justice Department's appeal of a circuit court decision striking down the Solomon Amendment - a 1994 measure that bars federal funding to universities that deny equal access to military recruiters. This is very good news since the original ruling misunderstands the legal and factual relationship between law schools and the military and, unless overturned, threatens to erode the quality of both. At the same time, the schools are undermining their own efforts to reform the military's Don't-Ask-Don't-Tell policy while seeming disdainful of servicemembers sacrificing their lives abroad.

Beginning in the 1970s, a majority of U.S. law schools adopted policies prohibiting discrimination on the basis of race, religion, gender, and other categories. Soon afterward, many schools added sexual orientation to the list and included school-sponsored career services among discrimination-free activities. It was not long before they started excluding the military - which bars openly gay soldiers from its ranks - from recruiting lawyers on campus.

The federal government struck back in the 1990s when Congress passed the Solomon Amendment to the annual defense appropriation bill, a provision that withheld Department of Defense (DOD) funding from any educational institution that denied the military access to campus recruiting. Over the years, the amendment evolved into its present form in which a law school and its parent institution can lose funding not only from the DOD but from all federal entities if the school fails to grant the military recruiting access "equal in quality and scope" to the access provided to private employers.

Enter the Forum for Academic and Institutional Rights (FAIR) - a consortium of approximately 30 law schools (only 18 of which have identified themselves publicly) that launched a federal lawsuit against the government in September 2003. After a New Jersey district court declined to enjoin enforcement of the Solomon Amendment, FAIR appealed to the U.S. Court of Appeals for the Third Circuit which in November 2004 found that the measure violated the First Amendment.

Since then, in late January, another federal district court in Connecticut found the Solomon Amendment unconstitutional in a separate case initiated by Yale University. In response, the U.S. House of Representatives announced its disapproval of these rulings, expressing in a non-binding resolution - enacted on February 2, 2005, by a vote of 327-84 - its continued support for the Solomon Amendment, stating that "acceptance of Federal funding carries with it an expectation of support and respect for the laws of the Nation", and encouraging the executive branch to continue to apply the Amendment's strictures to U.S. law schools. Then, later in February, a federal judge in Alabama declared that he would no longer hire law clerks from Yale Law School in protest of Yale's vocal opposition to the amendment.

Political maneuverings aside, though, did the Third Circuit arrive at the correct decision? Alas, for the most part, it did not. The court initially asserted that the Solomon Amendment was not merely a spending measure with strings attached but rather a statute regulating freedom of speech. Accordingly, the court applied strict scrutiny to analyzing FAIR's two central arguments: that the amendment restricted the schools' freedom of expressive association, and that the act compelled the schools to accept unwanted speech.

Regarding expression, the Third Circuit held that the schools' very policies of non-discrimination amounted to protected speech, that being forced to allow representatives of the military on campus "undermines ... their chosen message of nondiscrimination," and that the schools' interest in promoting this viewpoint outweighs the military's need to seek new hires on campus.

With respect to compelled speech, the court found that recruiting qualifies as expression and that the schools disagree vehemently with the content of the military recruiters' speech. The Third Circuit further held that the Solomon Amendment forces the schools to "propagate, accommodate, and subsidize" the military's message of non-inclusion and that the military could achieve its recruiting purposes through less restrictive means.

The court was correct in the narrow sense that the Solomon Amendment should penalize only offending law schools, not their parent institutions, by withholding only DOD dollars, not all federal monies. Such a punishment is more closely tailored to the crime than the draconian withdrawal of all disbursements from an entire university simply because one (semi-autonomous) sub-unit abhors certain military policies.

But serious legal and practical problems infect the ruling, many of which Judge Ruggero Aldisert - who possesses arguably the most intriguing name on the federal bench and who, despite sitting on the Third Circuit, maintains his chambers in Santa Barbara, California - observed in a trenchant dissent.

First, the amendment is attached to the defense spending bill, and the Supreme Court has long held that Congress's exercise of its spending power is entitled to greater deference than other legislation. Law schools are perfectly free to protest any policy they want; they may not, however, use federal dollars to interfere with military recruitment. As acting Solicitor General Paul Clement put it in the government's brief, "[I]f institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding. Neither the association, nor the receipt of federal funds, nor the equal access policy is compelled."

Second, by simply allowing the recruiters on campus, the schools are not accepting the government's viewpoint. Unlike cases involving the forced recital of the Pledge of Allegiance, the schools needn't express anything substantive. They must simply reserve one more folding table at a career fair or book an additional interview room. Most law schools willingly supply meeting space and funding to all sorts of student groups, including sectarian religious associations, with whose philosophies and practices the schools often vigorously disagree. Why then should extending the same courtesies to the U.S. military be viewed as an unacceptable capitulation?

Third, the Solomon Amendment in no way prohibits schools from protesting or otherwise disclaiming the military's recruiting activity. Students and faculty can rail against "Don't-Ask-Don't-Tell" to their hearts' content, as well they have. So long as the schools impose no substantial disparity between access to private and military recruiters, other conduct is not forbidden. Indeed, Harvard Law School's (former) dean explicitly stated that his reluctant decision to allow recruiters on campus in no way lessened Harvard's support for nondiscrimination in general or for repealing the Don't-Ask policy in particular. The dispute actually enhanced campus awareness of the underlying issues.

Law school faculties may feel satisfied that they taught the military a lesson. But this challenge, mounted at a time when servicemen and women are literally dying to defend and extend the very freedoms the law schools so cherish, is the height of folly. As law professor and blogger Eugene Volokh has argued, the military is not simply a private law firm that discriminates against gays and lesbians. It is a unifying American institution - indeed, the institution most trusted by all Americans - warts and all. Denying equal treatment to the entire military establishment on the basis of one policy reveals the schools' staggering lack of perspective on the issue.

Finally, the schools actually undercut their own goals: instead of enabling talented, "socially conscious" graduates to serve in the armed forces, where they could help reform Don't-Ask-Don't-Tell, the schools deliberately segregate their students from the military. Harvard Law's own recruiting director echoed exactly these sentiments, noting that "a good way to implement change is by getting people in the military who have different points of view who can effectuate change from the inside." Unfortunately, the schools have avoided this approach. As the Wall Street Journal opined earlier this year, "[t]he same liberals who object that the military includes too many lower-class kids won't let military recruiters near the schools that contain students who will soon join the upper-class elite."

Some have argued that, technically, JAG officers or other military legal staff merely implement policy and have no voice in formulating it. Perhaps. But this misses the larger point: in order to cultivate change, infiltrating the culture from within is generally more effective than railing against it from without. Can it really be doubted that the presence of Ivy League hearts and minds in the upper echelons of military rank would have a significant impact?

Sadly, the Ivory Tower is effectively reinforcing the very policies it abhors; the schools have managed to intertwine their impotence and intolerance. With any luck, the Supreme Court will let them off the hook by establishing, once and for all, that the Solomon Amendment is the law of the land.

Michael M. Rosen, a TCS contributor, is an attorney in San Diego and a graduate of Harvard Law School.


 

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