Court To Hear Solomon Appeal

The Supreme Court dealt gay rights activists a severe blow in June 2000 when the justices, in a 5-4 vote, ruled that New Jersey could not prevent the Boy Scouts from ousting a homosexual scoutmaster. Now, a team of gay rights activists and law school professors hopes to wrest a major victory from the jaws of defeat.

The June 2000 case, Boy Scouts of America v. Dale, could figure prominently in oral arguments this morning as the justices consider a high-profile dispute over campus military recruitment. A coalition of three-dozen law schools, the Forum for Academic and Institutional Rights (FAIR), will ask the justices to overturn the so-called Solomon Amendment, a statute first passed by Congress in 1994 that allows the Pentagon to withhold federal funds from universities that limit recruiters’ access to students. Many law schools—including Harvard’s—want to place restrictions on recruiters as a protest against the military’s “don’t ask, don’t tell” policy, which bars gays and lesbians from serving openly.

FAIR’s lead lawyer, E. Joshua Rosenkranz, will almost certainly cite the high court’s ruling in the Boy Scouts case today.

Just as the Boy Scouts have a First Amendment right to exclude gays, law schools have “a First Amendment right to exclude bigots,” Rosenkranz told a Boston College (BC) conference last month.

“It’s a little more complicated than that—but not much more,” Rosenkranz said.

The high court ruled in 2000 that the Scouts were an “expressive association” that “seeks to transmit...a system of values.” The late Chief Justice William H. Rehnquist wrote that “the forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate [its] viewpoints.”

According to FAIR, law schools likewise are “expressive associations”—except their message is that anti-gay discrimination is wrong. And by compelling law schools to include military recruiters in career fairs and other activities, the Solomon Amendment forces the schools to transmit the opposite message, FAIR says.

Technically, the Solomon Amendment does not directly require schools to let recruiters on campus—since it only kicks in when schools accept federal funds. But the penalties for schools that violate the Solomon Amendment are enormous, and every wing of the university—not just the law school—would suffer. Harvard, for instance, would lose over $400 million a year in federal funds.

Last November, a three-judge panel of the Third Circuit Court of Appeals ruled that the Solomon Amendment’s provisions are so onerous that they could be viewed as a direct regulation. The panel cited a 1958 Supreme Court ruling that bars the federal government from attaching strings to a grant in order to “produce a result which [it] could not command directly.”

The circuit court panel—on a two-to-one vote—endorsed FAIR’s interpretation of the Boy Scouts ruling.

As the Third Circuit ruling demonstrated, the same legal principle that can be used to further gay rights in one context also can be used to defend anti-gay policies in another.

For some civil rights activists, that’s a frightening lesson—because it means FAIR could win this battle and lose the wider war.

‘DO WE REALLY WANT FAIR TO WIN?’

University of Mississippi law professor Paul M. Secunda ’93, a former Eliot House government concentrator, opposes the “don’t ask, don’t tell” policy and serves on the Association of American Law Schools’ employment discrimination committee. That might make Secunda seem like a natural ally for FAIR, but he—along with other scholars across the country—is concerned by the coalition’s arguments.

“Do we really want FAIR to win? If they do, and it’s decided on expressive association, that could come back to haunt us,” Secunda said.

For instance, Title VI of the 1964 Civil Rights Act blocks federal funds to programs that discriminate on the basis of race, and the Title IX legislation passed by Congress in 1972 prohibits federal grants to schools that treat men and women unequally.

“If you want Title IX to exist, you need to imagine that Congress can make schools concede some education policy decisions if they take federal funding,” Janet Halley, a professor at Harvard Law School, told The Crimson in September.

A win for FAIR would also be a watershed moment because it would mark the first time that public institutions would be categorized as “expressive associations,” according to Secunda. Six of FAIR’s members are public law schools.

And if public schools have “expressive association” rights, “they might have more of an ability not to hire a person who would be controversial or unpopular—for example, a gay professor in Mississippi,” Secunda said.

A WAY OUT

So if FAIR wins before the high court, will Congress still be able to withhold federal funds from schools that discriminate against women and minorities?

Yes, according to FAIR founder and BC law professor Kent Greenfield. The high court has consistently recognized that the government has a “compelling interest” in fighting racism and sex discrimination, Greenfield said.

“Title VI and Title IX are completely safe regardless of how the court decides in our case,” Greenfield said in a phone interview yesterday.

Of course, the potentially far-reaching ramifications of a FAIR victory would only become an issue if the coalition of law schools prevails in the case.

“If Chief Justice [John G.] Roberts [’76] and others live up to their commitment to follow the law, we win,” said New York University professor Sylvia Law, who filed the initial anti-Solomon Amendment suit along with FAIR. “On the other hand, historically the Court has often deferred to the military even in the face of strong First Amendment claims.”

“I am not making bets on the outcome,” Law told The Crimson.

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