Students File Brief Against Pentagon

A Harvard Law School (HLS) student gay rights group will submit a friend-of-the-court brief in Philadelphia today urging federal appellate judges to reject Pentagon attorneys’ arguments in a case concerning military recruitment on college campuses.

The brief argues that the Forum for Academic and Institutional Rights (FAIR), a network of 15 law schools, has legal standing to challenge the 1996 Solomon Amendment, under which the Pentagon has threatened to block federal funding to universities that limit military recruiters’ access to students.

The student group, HLS Lambda, and fellow-signatories of the brief—which include national environmentalist and women’s organizations—claim that the Third Circuit Court of Appeals’ ruling in the FAIR lawsuit could substantially impact the future of the First Amendment.

According to FAIR founder and Boston College Law School professor Kent Greenfield, four other groups will file friend-of-the-court briefs supporting FAIR’s arguments today, including the Association of American Law Schools (AALS), whose list of 164 members includes HLS.

HLS and a host of other law schools nationwide have long required that employers who participate in the schools’ official recruiting functions must pledge not to discriminate on the basis of sexual orientation.

The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay servicemembers, and the Pentagon has refused to sign the nondiscrimination pledges.

But HLS exempted military recruiters from the requirement in 2002, after the Pentagon threatened to block hundreds of millions of dollars in federal aid to Harvard.

Last month, University President Lawrence H. Summers announced that Harvard lawyers and Pentagon officials were involved in negotiations to resolve the recruiting dispute. But he also has said that Harvard would not join FAIR or file its own suit against the Pentagon policy.

According to HLS Lambda President Amanda C. Goad, a second-year law student, today’s brief does not preclude the possibility that individual Lambda members or the group as a whole will file a separate suit challenging the Pentagon’s policy.

Defense Department attorneys have argued that FAIR must disclose the names of its member schools in order to proceed with the lawsuit. FAIR has sought to protect its members’ anonymity, arguing that if the schools’ names were made public, they could lose hundreds of millions of dollars in government aid and private donations.

Nonetheless, five law schools including New York University’s have publicly identified themselves as FAIR members.

“The government’s argument that FAIR doesn’t have the right to challenge the Solomon Amendment without revealing the names of its members violates...the First Amendment protection of legal advocacy,” said Jonathan L. Hafetz, a New York-based attorney for the firm Gibbons, Del Deo, Dolan, Griffinger and Vecchione, which is representing Lambda and its fellow signatories.

The National Resources Defense Council, the National Orgaization for Women’s Legal Defense Fund, the New York Civil Liberties Union, and the American Civil Liberties Union of New Jersey, along with nine student groups, have joined the Gibbons brief.

Hafetz told The Crimson on Saturday that today’s brief will argue in favor of FAIR’s standing to sue, but will not present an opinion on the merits of the Solomon Amendment itself.

In November, U.S. District Court Judge John C. Lifland, an 1957 HLS graduate, ruled that FAIR does have standing to challenge the statute, but he denied the plaintiffs’ motion for a preliminary injunction to immediately suspend enforcement of the amendment.

The Third Circuit panel is likely to rule on FAIR’s appeal of Lifland’s ruling in mid-March.

Lambda and the other groups represented by Gibbons set forth two arguments supporting FAIR’s standing claim in today’s brief.

First, the brief argues, “an association’s ability to maintain the confidentiality of its membership list is vital to preserving freedom of association.”

The argument dates back to the late 1950s, when the Supreme Court ruled that a civil rights group in Alabama could protect its members’ anonymity to shield them from retaliation at the hands of segregationists, Hafetz said.

“If the government can compel disclosure of FAIR’s members’ names, it will likely deal a fatal blow to any legal challenge to the Solomon Amendment,” according to today’s brief.

Second, the brief argues that the students who have signed on to the FAIR suit as plaintiffs have standing to challenge the Pentagon’s policy because “the Solomon Amendment has harmed their ability to receive the nondiscrimination message of their schools.”

Lifland ruled in November that law schools could convey their opposition to discrimination against gays even while accommodating a military presence on campus.

But the AALS, which so far “has been mostly silent about the case,” will argue in its brief that law schools are not able to counteract the harmful message sent by Pentagon recruiting, Greenfield said.

HLS officials did not return phone calls from The Crimson yesterday inquiring about the school’s involvement in the AALS brief.

Also today, a group of retired military officers will submit a friend-of-the-court brief telling the Third Circuit “that the military’s interest in this case is not sufficient or compelling.”

The brief will endorse FAIR’s claim that the Pentagon’s Office of the Judge Advocate General can attract enough attorneys without violating law schools’ nondiscrimination policies.

And a group of law school career services directors will file a fifth brief arguing that “recruiting has an important expressive component.”

Lifland, in his denial of FAIR’s motion for a preliminary injunction, treated recruitment as conduct, not speech, thereby taking it “out of the First Amendment rubric,” said E. Joshua Rosenkranz, an attorney representing FAIR, in an interview with The Crimson last week.

FAIR’s suit is one of a series of pending legal challenges to the Solomon Amendment. Law professors and students from Yale and the University of Pennsylvania already have filed suit.

A majority of the HLS faculty signed a letter in October urging Summers to join or initiate litigation, and some professors have indicated that they may soon file suit independently of the University administration.

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