Roberts Rejects His Profs’ Brief

Dealing a setback to his alma mater, Chief Justice John G. Roberts Jr. ’76 rejected an argument put forth by 40 Harvard Law professors when he delivered the Supreme Court’s opinion in a major military recruitment case yesterday.

In the first paragraph of his holding, Roberts singled out the Harvard professors’ brief and later wrote that the Harvard faculty members’ interpretation of the Solomon Amendment is “clearly not what Congress had in mind.”

The Harvard professors had asked the court to avoid a constitutional showdown by adopting an alternative interpretation of the Solomon Amendment. In doing so, the professors pursued a novel legal tactic in a court battle that raged for more than two years.

But the Harvard professors’ tactic did not sway their former student Roberts—nor did it convince any of the five other justices who attended Harvard Law.

The Solomon Amendment requires that schools receiving federal funds must grant military recruiters access to students. But Harvard and other law schools argue that the military’s ban on openly gay service members violates the schools’ nondiscrimination policies.

FAIR’s attorney, E. Joshua Rosenkranz, told the court in December that the Solomon Amendment encroaches upon law schools’ freedom of association by forcing them to cooperate with military recruiters. He also said the statute infringes on schools’ freedom of speech by forcing them to disseminate the military’s recruiting messages.

The Solomon Amendment requires schools to give recruiters access that is “at least equal in quality and scope to the access...that is provided to any other employer.” Since all employers must comply with the nondiscrimination requirement, the professors said, Harvard and other law schools that hold the military to this pledge are giving the Pentagon the same treatment as other employers.

THE COURT’S DECISION

In delivering the Court’s opinion yesterday, Roberts attacked the position taken by the law professors, writing that “[t]he Solomon Amendment should be read the way both the Government and FAIR interpret it.”

“Contrary to the argument of amici law professors, a school excluding military recruiters could not comply with the Solomon Amendment by also excluding any other recruiter that violates its nondiscrimination policy,” he wrote.

Even if the nondiscrimination policy did not target the military, Roberts wrote, it would violate the Solomon Amendment if it led to less access for military recruiters.

Observers said they were not surprised that the court to dismiss the Harvard professors’ statutory argument. Both the government and FAIR opposed the professors’ interpretation during oral arguments in December.

Howard J. Bashman, a Pennsylvania attorney who filed a brief supporting the government’s position, said that “the court typically allows the parties to decide the issues that are presented in the appeal, and would not allow those in amicus to interject issues into the case.”

He also said that he thought the statutory argument was an poor strategy on two grounds. First, he said, the law school professors’ brief “made it seem as though the constitutional challenge was weak.” And second, if the Harvard professors’ brief had succeeded, he said, “Congress would have been able to pass a law to accomplish what it actually wanted, and that would have brought the constitutional issue squarely back to the court.”

But Professor of Law David J. Barron ’89, a former Crimson president who signed the amicus brief, disagreed, saying that he “thinks the court’s decision is incorrect and that our brief had it right.”

He did find some silver lining in the decision, though, offering that he was “very pleased with the constitutional holding,” because “the court’s constitutional analysis protects the legislative power of the government to enforce antidiscrimination laws.”

Barron was referring to concerns expressed by some Harvard professors that a decision in favor of FAIR could undermine other federal anti-discrimination laws. If schools that support gay rights can constitutionally exclude bigots, then institutions that support bigotry might be constitutionally able to exclude homosexuals, women, and minority groups, FAIR’s critics said.

FAIR’s founder, Boston College law professor Kent Greenfield, called the Harvard professors’ argument “innovative,” but agreed with Bashman that the justices were right to dismiss the professors’ argument.

“The Court was able to see that there was a real constitutional conflict here,” Greenfield said. “I just think they decided it the wrong way.”

—Javier C. Hernandez contributed to the reporting of this story.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.