The stunning concession by Solicitor General Paul D. Clement comes after an Air Force colonel wrote in 2002 that law schools could lose federal funds if they “intimidate” students who are interested in joining the military.
Clement’s statement came in the high-profile case of Rumsfeld v. FAIR, which pits the secretary of defense against a coalition of law schools, known as the Forum for Academic and Institutional Rights, which says that on-campus military recruiting violates the schools’ freedom of speech.
Clement said the federal government would have no objection if schools such as Harvard organized lines of jeering students when military recruiters visit.
“I think the Army recruiters are not worried about being confronted with speech,” Clement, a 1992 Harvard Law graduate, told the high court. “They are worried about actually not being allowed onto the same [campus].”
Under a statute initially passed in 1994 and known as the Solomon Amendment, the Pentagon can withhold federal dollars from schools that deny military recruiters equal access to students.
The statute poses a dilemma for Harvard Law School, which requires that all recruiters pledge not to discriminate on the basis of sexual orientation. But the “don’t ask, don’t tell” policy bars openly gay individuals from serving in the military, and the Pentagon has refused to sign the school’s pledge.
Harvard could lose over $400 million a year in federal funds if it violates the Solomon Amendment.
During oral arguments in Rumsfeld v. FAIR last Tuesday, Justices Antonin Scalia and Anthony M. Kennedy seemed surprised by Clement’s concession.
Kennedy, a 1961 Harvard Law graduate, called the solicitor general’s stance “an extraordinary position.”
“You mean [law schools] could organize a student protest at the hiring interview room so that everybody jeers when the applicant comes in the door?” Kennedy asked. “When it’s say, a job fair and all the employers are there...and the school organizes a line jeering both the recruiters and the applicants, that’s equal access?”
Clement replied, “I think that would be equal access.”
But the president of FAIR, Kent Greenfield, said he thought Clement was “disingenuous” in his response.
“The record in this case is full of evidence of instances in which the Defense Department threatened to pull federal funds merely because the schools protested,” he said.
Greenfield said, though, that he hoped law schools would use Clement’s statement to their advantage to defend future protests.
Clement’s concession would bolster the government’s contention that recruiters are not demanding special treatment on law school campuses, according to Howard J. Bashman, an attorney who filed a friend-of-the-court brief in the case siding with Rumsfeld.
“I think that the justices who are concerned about the law schools’ expression being limited may be put at ease by the way the government answered the jeering question,” Bashman said.
The justices, though, seemed more amused than relieved by Clement’s concession.
“You’re not going to be an Army recruiter, are you?” Scalia quipped, drawing laughter from the courtroom.
Scalia, a 1960 Harvard Law graduate, then added in a more serious tone, “If you have jeering and picketing, do you really think that that fulfills the purposes of this amendment?”
Later in the argument, Justice Ruth Bader Ginsburg asked Clement what sorts of measures law schools could take to disassociate themselves from the military’s “don’t ask, don’t tell” policy.
“They could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests,” Clement replied.
Indeed, Harvard Law School may soon adopt some of the policies mentioned by Clement.
Last month, Law School Dean Elena Kagan appointed a “Solomon amelioration” task force, headed by Lambda—the school’s gay, lesbian, bisexual, and transgender student group—to examine methods in which the school could curb the effects of the statute.
Lambda Co-President Jeffrey G. Paik ’03 said that if FAIR loses the case, Law School administrators must show their disapproval of military recruiters—or else they could face persistent protests.
“If the Law School is not responsive, there could be a lot of anger in the community,” Paik said.
In October, Lambda members staged a “sit-in” at the Law School student center, Harkness Commons, to voice their opposition to the military’s “don’t ask, don’t tell” policy. And in the past, Paik said, Law School students have protested recruitment by signing up for interviews with recruiters in order to waste the military officers’ time.
—Staff writer Javier C. Hernandez can be reached at firstname.lastname@example.org.