Court To Hear Solomon Case

The U.S. Supreme Court said yesterday that it will take up a hotly-contested suit over military recruitment at colleges and universities, just five months after Harvard Law School (HLS) barred the Pentagon from interviewing students on campus.

The justices’ move is the latest development in the bitter courtroom battle over the Solomon Amendment, a law initially passed by Congress in 1995 that requires schools to give military recruiters access to students as a condition for receiving federal funding. A Philadelphia-based Third Circuit panel ruled in November that the statute violated schools’ First Amendment rights.

Prior to the Third Circuit’s ruling, the Pentagon had told Harvard officials that the University would lose hundreds of millions of dollars in federal research grants unless HLS let military recruiters use the school’s Office of Career Services.

HLS requires that employers who use the school’s career services pledge not to discriminate on the basis of sexual orientation. Under the “Don’t ask, don’t tell” policy signed by President Clinton in 1993, gays and lesbians cannot serve openly in the armed forces.

But in 2002, facing a threat from the Pentagon to cut off funding, HLS exempted the armed services from the long-standing nondiscrimination requirement.

At the time, Harvard took no legal action against the Pentagon, but a coalition of 31 law schools and faculty groups—calling themselves the Forum for Academic and Institutional Rights (FAIR)—filed a suit against six Bush administration cabinet officials, charging that the Solomon Amendment was unconstitutional.

After a Third Circuit panel voted 2-1 in favor of FAIR, Justice Department attorneys, who are handling the government’s case, appealed the ruling to the nation’s highest court.

Sharon E. Frase, an attorney in the New York office of Heller Ehrman, who is representing FAIR, said that a Supreme Court clerk told another lawyer at her firm yesterday morning that the justices are likely to hear oral arguments in the case in November or December.

Former U.S. Solicitor General Charles Fried, who is now Beneficial professor of law at Harvard, said yesterday that the Supreme Court’s decision to grant the government’s appeal was “inevitable.”

“An act of Congress has been held unconstitutional....That’s something that almost always requires the Supreme Court’s attention,” Fried said.

But Fried, who has argued more than 30 cases in front of the Supreme Court, said the justices’ ultimate verdict on the FAIR suit is “really very hard to predict.”

The Supreme Court’s move further delays the implementation of the appellate panel’s ruling. In January, the Third Circuit, siding with a Justice Department motion, agreed that its decision to overturn the Solomon Amendment would not go into effect until after the justices weighed in on the issue. Thus HLS—which reinstated its rule limiting campus military recruitment in the aftermath of the Third Circuit ruling—technically stands in violation of the Solomon Amendment, which currently remains on the books.

By contrast, Yale Law School won an injunction earlier this year from a U.S. District Court judge in Bridgeport explicitly allowing it to keep military recruiters off campus.

Since both the Third Circuit ruling in the FAIR case and the Bridgeport judge’s decision in the Yale dispute deemed the Solomon Amendment unconstitutional, some experts had said the justices might wait to weigh in on the issue until a conflict arose among the lower courts.

“If the Supreme Court was uncertain as to whether the Solomon Amendment was unconstitutional, they might have been more willing to postpone review until other circuits considered that question,” said Howard J. Bashman, a Pennsylvania attorney and appellate law expert.

Bashman, who represented three law school veterans groups that filed friend-of-the-court briefs on the government’s behalf in an earlier stage of the FAIR case, predicted that the justices would strike down the Third Circuit ruling by at least a 7-2 margin. “And it’s likely to be unanimous,” he said.

But Frase expressed confidence that FAIR would prevail. “We relied from the outset on established Supreme Court precedent that supported our arguments, and we’re just looking forward to seeing our strategy come to fruition,” she said.

“When the military is forcing law schools to hand out their recruiting literature, post their job announcements, and e-mail students to set up interviews, they’re being forced to disseminate the government’s message of discrimination,” Frase said. The Third Circuit panel majority agreed, ruling that law schools are “expressive associations” and cannot be compelled to advocate a viewpoint against their will.

Ironically—given that the Third Circuit’s ruling in FAIR was hailed by gay rights advocates—the panel’s majority opinion cites the Supreme Court’s 2000 ruling in Boy Scouts of America v. Dale, which upheld the scouts’ right to prevent an openly gay man from serving as a troop leader. According to the Third Circuit, the Boy Scouts cannot be compelled to include gays, just as law schools cannot be forced to include discriminatory employers at recruiting events.

In its petition to the Supreme Court, the Justice Department argued that because FAIR member schools “ha[ve] not been compelled to do anything,” but have “voluntarily chosen to enter into grant agreements or contracts” with the federal government, the schools must accept the stipulations attached to those grants.

“The solicitor general’s office essentially said that there is no constitutional limit to putting conditions on funding,” said FAIR founder Kent Greenfield, a professor of law at Boston College. “If they win, it’s the largest expansion of government prerogatives in a generation.”

Greenfield said he is “very optimistic” that FAIR can win the support of the justices who have proved to be swing votes on the court—namely Anthony Kennedy.

“Kennedy is both a good defender of First Amendment rights and has also been very attuned to issues of discrimination against gays and lesbians,” Greenfield said.

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