Solomon Case May Face Appeal

Bush administration attorneys said last Friday they will ask the Supreme Court to reverse a federal appellate panel’s ruling that cleared the way for Harvard Law School to reinstate its policy restricting military recruitment on campus.

The government’s move is the latest development in a year-and-a-half-long legal battle over the 1996 Solomon Amendment, under which the Pentagon can block federal funding to universities that limit military recruiters’ access to students.

Harvard Law School Dean Elena Kagan announced in November that the military could not use the law school’s recruiting resources until the Pentagon signed a pledge promising not to discriminate against gay and lesbian employees. The military, which discharges openly gay servicemen under its “don’t ask, don’t tell” policy, refused to sign the pledge.

Kagan’s decision came after a panel of judges from the Philadelphia-based Third Circuit Court of Appeals voted 2-to-1 that the 1996 statute is unconstitutional because it violates law schools’ First Amendment right to express their opposition to discrimination against gays and lesbians.

In a motion filed last Friday to delay the enforcement of the panel’s decision, Bush administration lawyers said that the Supreme Court is “highly likely” to review the Third Circuit’s ruling—with a “serious possibility” that the justices will uphold the constitutionality of the Solomon Amendment.

Former solicitor general Charles Fried said the justices are likely to review the panel’s ruling.

“The Supreme Court does not like to leave a decision out there that says an act of Congress is unconstitutional,” said Fried, who is the Beneficial Professor of Law.

The Third Circuit panel’s ruling came in a suit filed by a coalition of law schools called the Forum for Academic and Institutional Rights (FAIR) along with a group of legal scholars and several individual plaintiffs. Harvard is not part of the coalition.

Other challenges to the Solomon Amendment, including lawsuits filed by students and professors at Yale and University of Pennsylvania, are slowly crawling through the district courts. A member of FAIR’s legal team, Sharon Frase of the firm Heller Ehrman, said the Supreme Court may wait for rulings in the other cases before acting on the Bush administration’s appeal.

Justices frequently look for a conflict in the lower courts before agreeing to review an issue, said Visiting Professor of Law Cass R. Sunstein ’75. “But on the other hand, this is a case of evident national importance, and if the U.S. government wants the Court to hear it, the Court is often attentive to that fact,” Sunstein said.

Normally, the loser of an appellate panel ruling would ask the full circuit court to review the decision, but a majority of active judges on the Third Circuit recused themselves from the FAIR suit. Frase speculated that several members of the Third Circuit may have conflicts of interest due to affiliations with law schools in FAIR.

‘NOT OPEN OR SHUT’

In its November ruling, the appellate panel’s two-judge majority ruled that the government had provided no evidence to prove that the Solomon Amendment was necessary for the military to fill the ranks of its Judge Advocate General (JAG) office, the armed services’ legal wing.

The Bush administration attorneys last Friday presented a flurry of declarations to disprove the panel’s finding, including statements from several generals who said that on-campus interviewing is the only way for JAG to recruit top law school graduates.

Bush administration lawyers said in that motion that the justices are unlikely to second-guess the military’s own conclusion that on-campus recruiting is a national security imperative.

“It’s likely that some of the justices will be highly uncertain that the lower court got it right,” Sunstein said.

But Fried said that if the Solomon Amendment suit reaches the Supreme Court, “the case is not open or shut for either side.”

Fried said the Court’s 1987 ruling in South Dakota v. Dole, which held that the federal government could reduce highway funding to states that refused to impose a 21-year-old minimum drinking age, suggested that Congress could not impose unduly coercive penalties for noncompliance.

If the Pentagon found Harvard Law School to be in violation of the 1996 statute, it could cut support to all branches of the University from nearly every federal agency, amounting to more than $400 million annually in lost funds for Harvard—a penalty that the Court might deem “excessive,” Fried said.

As solicitor general in 1987, Fried oversaw the federal government’s legal effort in the South Dakota case.

BUYING TIME

Unless it rules in favor of the Bush administration’s motion, the Third Circuit will tell a district judge to suspend enforcement of the Solomon Amendment.

Currently, the 1996 statute is technically still on the books, Frase said—although it would be unlikely for the Pentagon to take any action against Harvard Law School—the only institution so far to bar recruiters from campus in response to the Third Circuit ruling—until the FAIR suit is resolved.

The Bush administration’s motions could enable military recruiters to maintain their campus presence when the spring recruiting season kicks off at law schools nationwide next month.

FAIR President Kent Greenfield, a professor of law at Boston College, called for prompt action to suspend the 1996 statute.

“Every day that the Solomon Amendment is in force is another day in which First Amendment rights are being violated,” Greenfield said yesterday.

The Justice Department was closed yesterday due to the inauguration, so Bush administration attorneys could not be reached for comment.

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