A Supreme Battle Takes Shape

A reconfigured U.S. Supreme Court is set to decide the constitutionality of a law that restricts the flow of federal funds to colleges that deny military recruiters the same access to students they give to other employers.

Now, a broad array of institutions, law students and professors, and other groups have weighed in with legal arguments on behalf both of the federal government and of the law schools that are challenging the law.

Wednesday was the deadline by which the Forum for Academic and Institutional Rights, which sued to challenge the law, and its supporters had to file their legal briefs in the case known as Rumsfeld v. Forum for Academic and Institutional Rights (04-1152). Among those filing briefs late Wednesday opposing the law were a group of Harvard University law professors, seven elite universities, and the American Association of University Professors.

The U.S. government and parties that support the law -- including a collection of law professors and students and several legal advocacy groups, including the Center for Individual Rights -- submitted their briefs last month. The Supreme Court, with a new chief justice at the helm, is set to hear the case December 6.

When the justices gather, they will decide whether to uphold a November 2004 decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit, which held, 2 to 1, that the so-called Solomon Amendment violated the First Amendment rights of law schools. 

The federal law, which was enacted in 1994 but amended and expanded several times since, gives federal agencies the right to withhold most funds (with the notable exception of student financial aid) from a college if any part of it, such as a law school, fails to give Pentagon recruiters equal access to its students.

Congress passed the law because legislators and military officials were upset that dozens of institutions, notably law schools, had barred military recruiters from their campuses because the Defense Department's policy restricting gay and lesbian servicemembers violated the institutions' nondiscrimination policies.

FAIR, a coalition of more than 30 law schools and faculties, challenged the federal law in 2003, after the Pentagon stepped up its enforcement of the law in a way that led virtually all higher education institutions (except for one or two freestanding law schools) to make exceptions to their nondiscrimination policies for military recruiters.

(In a related matter, Harvard University's law dean, Elena Kagan, announced Tuesday that the law school was reversing its earlier decision to again prohibit military recruiters from meeting students in its Office of Career Services because the Pentagon had threatened to "withhold all possible funds if the Law School continued to bar the military.")

A federal court sided with the government in upholding the Solomon Amendment in late 2003, but the Third Circuit panel reversed that ruling in November. The government appealed that decision to the Supreme Court, which agreed in May to hear the case.

In its brief to the court, the U.S. solicitor general's office argues that the Third Circuit wrongly concluded that the Solomon Amendment is a mandate that restricts the free speech and association of law schools in violation of the First Amendment. The law "is a condition on federal funding, not a direct mandate," the solicitor general, Paul D. Clement, wrote. "It allows educational institutions to determine the level of access that recruiters, including military recruiters, receive. It asks only that, in exchange for supporting the education of an institution’s students, the federal government should have an equal opportunity to recruit the very students whose education it has supported."

Colleges are free to forgo federal funds if they don't want to accept the condition that they give military recruiters equal access, the government argues. But it is inappropriate for an institution to "voluntarily accept federal money and then claim that a condition on the receipt of that money violates its right to associate," it argues.

The government rejects the Third Circuit's argument that the Solomon Amendment violates the "compelled speech" doctrine of the First Amendment by forcing students, faculty members or institutions to support the military's stance on gay people.

"Institutions need not utter any words of endorsement for that policy; nor must their representatives carry a sign expressing support for that policy." Contrary to the appeals court's finding that the law puts colleges in the position of seeming to approve of the military's stance on gay people, the government contends, "students and the public both can readily understand that military recruiters speak for the military, not for the educational institutions they visit."

In its brief filed late Wednesday, FAIR challenges the government's contention that all the Solomon Amendment seeks is "equal" treatment for military recruiters. "It is a demand for exceptional treatment -- a demand to be the only discriminatory employer that a law school will assist. It is, moreover, not just a demand that law schools stay neutral with regard to the government policy they protest, and just suffer military recruiters in their own forums... It is a demand that a law school accord the military 'most-favored-recruiter' status, even as the recruiters discriminate against the school's own students."

The law, the forum says in its brief, directs law schools not just to provide access to students, but to disseminate its information and otherwise promote its recruitment efforts. "Compelling a law school to carry or host thegovernment's recruiting message against its will is a violation of the doctrine of compelled speech," FAIR argues.

In addition, by requiring a law school to help an employer that discriminates, the Solomon Amendment "undermines not just the law school's interest in protecting students from discrimination," but also that school's effort to use its nondiscrimination and other policies to teach students lessons and to show them how to protest effectively, FAIR argues. "A law school cannot effectively teach that it is immoral to assist discrimination when it affirmatively assists an employer that openly discriminates against the school's own students," it says.

Friends of the Court

Because yesterday evening was the deadline for briefs that sided with FAIR in seeking to affirm the Third Circuit's decision, it was unclear exactly how many organizations planned to submit them. But by late Wednesday afternoon, a group of 40 Harvard Law School professors, the AAUP, and several major universities had filed briefs opposing the Solomon Amendment.

The Harvard professors' brief argues that while the government suggests that the Solomon Amendment requires academic institutions to treat military recruiters in the same way it treats other recruiters, in fact the law was intended to apply "only to policies that single out military recruiters for special disfavored treatment, not evenhanded polices that incidentally affect the military."

It continues: "There is no allegation that any of the law schools in question restricts military recruiting as such, much less 'prohibit[s]' military recruiters from gaining access on terms comparable to every other employer. Nor can there be any credible suggestion that the law schools crafted their antidiscriminationpolicies with the aim of excluding the military."

"This case is not -- and never has been -- about whether law schools may 'discriminate' against the military or whether they must provide “equal access” to military recruiters. Instead, the question is whether the Solomon Amendment confers upon military recruiters the unprecedented entitlement to disregard neutral and generally applicable recruiting rules whenever a school’s failure to make a special exception might incidentally hinder or preclude military recruiting. The answer is 'no.' "

In its brief in support of FAIR, the American Association of University Professors argues that the Solomon Amendment restricts academic freedom by imposing conditions on federal funding that suppress "faculties’ message that discrimination against gay students in recruiting violates academic merit and nondiscrimination standards."

"Academic freedom," the AAUP asserts, "extends beyond teaching and research narrowly understood. It also includes faculty policies setting the criteria under which universities admit and evaluate students, and the standards and methods that faculties bring to bear to shape the educational environment outside the classroom, including by modeling and instillingprofessional values that students will carry into postgraduate employment."

A group of Ivy League and other universities, including Columbia, Cornell, Harvard, New York and Yale Universities and the Universities of Chicago and Pennsylvania, also filed a brief Wednesday saying that "modern research universities" cannot just forgo federal funds as the government suggests, and that the country would be damaged if they did. "Universities," the institutions argue, "cannot decline federal funding without fundamentally altering their character and dismantling a significant component of the nation's research and development infrastructure."

The major higher education associations, which often weigh in on important cases before the Supreme Court, did not file a brief in this case.

On the Government's Side

The groups that submitted briefs backing the government fall into two major camps: those that are concerned about how the Third Circuit's decision may affect higher education or law students, and those that are primarily concerned about how the appeals court's ruling, by seeming to undermine a Supreme Court decision in a case involving the Boy Scouts, might erode the ability of groups like the Scouts to decide what sorts of people to admit as members or leaders.

The latter category includes a set of nonprofit groups that advocate for the sanctity of the Constitution or for religious causes, including the National Legal Foundation, the Center for Law & Religious Freedom, and the Eagle Forum Education & Legal Defense Fund.

One party familiar to observers in higher education, the Center for Individual Rights, which brought the affirmative action admissions cases against the University of Michigan, filed an amicus brief on behalf of students from 45 law schools as well as several military veterans. The center describes its interest in the case as "furthering academic freedom on law school campuses, and halting the imposition by law school administrations and faculty of what they believe to be politically correct views on each and every student, who should have the academic freedom to decide for themselves what they wish to hear and accept."

CIR argues: "In an edict reminiscent of double-think in Orwell’s 1984, the decision below asserts that it is enforcing academic freedom by preventing all students -- the primary beneficiaries of academic freedom -- from exercising their First Amendment right to listen, on campus, to the message of the military."

Among the other groups siding with the government, and the major thrust of their arguments, are:

• A coalition of 32 professors and 57 students at more than two dozen law schools, who argue that if the appeals court's decision stands, these and other "law students will be deprived of opportunities to acquire first-hand information from military recruiters about potential careers in the armed forces."
• The attorneys general in 11 states -- Alabama, Colorado, Delaware, Florida, Indiana, Kansas, Michigan, South Dakota, Texas, Utah and West Virginia -- who contend that the Third Circuit's holding that requirements placed on the receipt of higher education funds can violate the First Amendment could undermine a broad array of state laws that apply conditions to college funding.
• The Claremont Institute Center for Constitutional Jurisprudence, which takes the unorthodox position that federal funding of higher education is constitutional only because of laws like the Solomon amendment that link such funds to the original purpose, designated by Congress centuries ago, of educating potential soldiers.