Solomon Brief Tackles Federal Aid

A former U.S. attorney general and a former clerk to Justice Clarence Thomas have filed a friend-of-the-court brief in the high-profile Solomon Amendment case arguing that if the controversial amendment is overturned, the entire constitutional justification for federal aid to universities will be undermined.

According to the brief, “The Constitution contains no enumerated power delegating to the federal government specific authority over education.” Instead, the brief argues, “the most solid footing for federal financial grants to local institutions of higher education appears to be the power delegated to Congress in Article I, Section 8 of the Constitution ‘to raise and support Armies.’”

Therefore, the Solomon Amendment, which requires schools that receive federal funds to grant military recruiters “equal access” to students, is “the very condition which renders federal spending permissible,” the brief argues.

The lawyer who drafted the brief, John C. Eastman, acknowledged in a phone interview yesterday that his argument is not likely to draw the support of a majority of the justices. But Eastman, who clerked for Thomas in the 1996-1997 term, said that he will consider his effort a success if one of the justices—most likely Thomas—recognizes the brief’s argument.

“A paragraph in a concurring opinion means that people ought to look at this question—and they will,” Eastman said.

Tyler Professor of Constitutional Law Richard H. Fallon said that Eastman’s brief presents “an argument with no foundation whatsoever in the decisions of the Supreme Court, going back to the 1930s.” But, Fallon said, the prospect of Thomas including the brief’s argument in a concurring opinion lies “entirely within the realm of possibility.”

“It’s an argument which some of the real hard-line, right-wing conservatives who would like to go back to something more like an original understanding of the Constitution push,” Fallon said.

“It’s the kind of thing that Thomas does from time to time,” he added.

Article I of the Constitution does authorize Congress to “provide for the common Defence and general Welfare of the United States,” but Eastman’s brief argues that the clause does not authorize federal funding for universities because “such institutions of higher education primarily benefit local, not national, interests.”

Eastman is the director of the Claremont Institute Center for Constitutional Jurisprudence, a public-interest law firm in Orange, Calif. whose mission is to “restore the principles of the American Founding to their rightful and preeminent authority in our national life.”

Eastman’s brief notes that the framers of the Constitution held a narrow view of the federal government’s spending powers. Moreover, President Madison, who played a key role in the drafting of Article I, vetoed a bill to construct roads and canals in 1817 because he did not believe that the Constitution permitted Congress to undertake spending projects that serve a “local or state benefit.”

Eastman’s brief argues that the Solomon Amendment may in fact legitimate federal aid to Harvard and other schools. “When funding of higher education is restricted by the Solomon Amendment to institutions allowing military recruiters on campus, this overall program—or at least parts of it—is permissible under Congress’ power to raise and support armies,” the brief contends.

Eastman’s co-counsel on the brief is Edwin Meese III, a longtime aide to President Reagan who served as attorney general from 1985 to 1988.

More than 20 other friend-of-the-court briefs have been filed in the Solomon Amendment case, including one from a group of seven elite universities including Harvard, and a second from a group of 40 Harvard Law School professors. Under a 26-year-old Law School policy, recruiters that use the school’s career placement office must pledge not to discriminate against gays and lesbians. Military recruiters have refused to sign the pledge, and the Law School had granted the armed services an exemption from the policy from 2002 to 2004.

And–after the Pentagon renewed its threat to cut over $400 million in federal funds to Harvard–the Law School reluctantly agreed last week to again grant Pentagon recruiters access to the career placement office.

A coalition of more than two dozen law schools—known as the Forum for Academic and Institutional Rights—which sued the Bush administration in 2003 to halt enforcement of the Solomon Amendment, argues that the statute violates schools’ free-speech and free-association rights by preventing law schools from expressing their disapproval of the Pentagon’s “don’t ask, don’t tell” policy.

The Supreme Court will hear the case on Dec. 6.

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