Government Pushes Solomon Amendment

Government lawyers told a Philadelphia-based federal appeals court Tuesday that an effort by law schools to limit military recruiters’ access to campuses poses a potential threat to national security.

Tuesday’s brief is the latest development in a high-profile suit challenging the 1996 Solomon Amendment, under which the Pentagon has threatened to cut funding to universities that fail to cooperate with military recruiters.

The government’s action comes just one month after a majority of the Harvard Law School (HLS) faculty asked the Third Circuit Court of Appeals to let universities exclude the Pentagon from official recruiting functions.

“When educational institutions close their doors to military recruiting, they directly interfere with the federal government’s constitutionally mandated function of raising a military and thereby compromise the defense of the nation,” government attorneys charged.

HLS requires that recruiters who use its Office of Career Services 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 pledge.

In May 2002, then-HLS Dean Robert C. Clark granted military recruiters an exemption from the

nondiscrimination policy after the Pentagon threatened to cut hundreds of millions of dollars in federal funds to the University.

But HLS professors continued to fight the Pentagon’s policy, even as the military gained access to the school’s recruiting resources.

In January, HLS professors submitted a friend-of-the-court brief on behalf of the Forum for Academic and Institutional Rights (FAIR), a national network of law schools and student groups that filed a lawsuit against the Pentagon last September.

The FAIR suit contends that the Solomon Amendment is unconstitutional because it forces law schools to propagate the military’s anti-gay policy.

In their brief, the HLS professors argued that Pentagon lawyers had misinterpreted the 1996 statute, and that Harvard had been in compliance with the Solomon Amendment even before Clark waived the nondiscrimination requirement for military recruiters.

FAIR lawyer E. Joshua Rosenkranz of the New York law firm Heller, Ehrman, White and McAuliffe said that the HLS professors have filed the only friend-of-the-court brief that challenges the Pentagon’s interpretation of the statute—rather than the constitutionality of the amendment itself.

But government lawyers barely mentioned the HLS professors’ arguments Tuesday—except for a footnote on page 47 of the 12,000-word brief.

“Because the plaintiffs...have not pursued [the HLS professors’] claim in this appeal, the government need not address it here,” Justice Department attorneys argued Tuesday.

The government’s failure to respond to the HLS professors’ claims could prove significant as the case progresses, according to Rosenkranz.

Bloomberg Professor of Law Martha L. Minow, who spearheaded the effort to file the HLS brief last month, agreed that the Justice Department’s choice not to respond to the faculty’s argument indicated a substantial weakness in the government’s case.

“If the government had a strong response to our position, they probably would have included it,” Minow wrote in an e-mail to The Crimson last night.

“In addition, the government brief does little with the legislative history, which might be because our brief—coupled with FAIR’s—exposes how the current [government] position bears little relationship to the legislative purpose of the Solomon Amendment,” Minow said.

The Department of Justice and the Pentagon declined to comment regarding the lawsuit.

With federal lawyers remaining tight-lipped, Tuesday’s brief offers a rare glimpse of how the government’s legal strategy is developing.

So far in the case, both sides have invested significant resources on the issue of standing, with government lawyers claiming that the plaintiffs are not in a legal position to file suit.

Government lawyers have argued that FAIR must disclose the names of its members schools.

FAIR—with the backing of a friend-of-the-court brief signed by the student gay rights group HLS Lambda, among others—sought to preserve its members’ anonymity.

But after New York University Law School and George Washington University Law School voluntarily identified themselves as members of the alliance, Justice Department lawyers told the appeals court Tuesday that the government would drop its challenge to FAIR’s standing.

“There was no way the government was going to win an argument on standing,” Rosenkranz said.

The Justice Department’s concession appears to be at least a partial victory for Lambda, which focused on the standing issue in its January brief but did not weigh in on the merits of the Pentagon policy itself.

But Lambda President Amanda C. Goad, a second-year HLS student, offered a tempered response to Tuesday’s developments.

“We continue to believe that students are being injured by the Solomon Amendment,” she said.

“BOLD PRONOUNCEMENT”

FAIR’s suit is just one of a series of pending legal challenges to the Solomon Amendment.

Law professors and students from Yale and the University of Pennsylvania have already filed suits.

In November, U.S. District Court Judge John C. Lifland, a 1957 HLS graduate, denied FAIR’s motion for a temporary order immediately suspending enforcement of the statute.

But according to Rosenkranz, “the government sheds a lot of the arguments that were made at the district court level.”

Lifland’s opinion supported the Pentagon’s claim that schools receiving federal funds must cooperate with military recruiters.

But according to Rosenkranz, Justice Department lawyers argued Tuesday “that Congress can constitutionally require any school to provide services to military recruiters”—even if the school does not accept government money.

“That’s quite a bold pronouncement,” Rosenkranz said, adding that the government’s articulation of a more extreme viewpoint Tuesday bolsters FAIR’s chances for success.

But the Third Circuit Court is not likely to hear oral arguments in the case until May, according to Rosenkranz.

“Harvard’s spring recruiting will most likely be under the current Solomon Amendment regime,” he said.

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