And the Forum for Academic and Institutional Rights (FAIR), a nationwide network of 36 law schools challenging the Pentagon’s recruitment policy, may have tossed away its only chance at victory by refusing to advance an argument made by 40 Harvard law professors that initially appeared to attract the support of several justices.
The statute in question, known as the Solomon Amendment, allows the Pentagon to withhold federal funds from schools that deny the military “equal access” to their campuses. Harvard Law School and many of its peers require recruiters to sign a pledge stating that they will not discriminate against gays.
The military, which bars gays from serving openly under its “Don’t Ask, Don’t Tell” policy, has refused to sign the pledge. And the Pentagon threatened to cut over $400 million in government grants to Harvard unless the Law School let military recruiters on its campus.
The Harvard professors’ friend-of-the-court brief presented a statutory argument that the military already had “equal access” to students because all recruiters were faced with the same nondiscrimination pledge.
But FAIR’s lead attorney, E. Joshua Rosenkranz, appeared to reject that argument under questioning from Justice Stephen G. Breyer yesterday.
Breyer asked, “Do you agree with the government that the statute as fairly interpreted is violated when schools issue rules uniformly applied to all employers that you can’t come in if you have the discrimination against hiring gay people?”
“Yes, your honor,” Rosenkranz replied, directly contradicting the Harvard professors’ brief.
Before that dramatic moment three-quarters of the way through oral arguments, the justices appeared sympathetic to the statutory claim.
Justice Antonin Scalia pounced on the government’s top attorney, Solicitor General Paul D. Clement, after Clement said that the military “simply asks for what other employers receive.”
Scalia, a 1960 graduate of Harvard Law School, retorted: “But these institutions, I gather, would not allow other employers who have the same policy against the hiring of homosexuals to interview at their institutions. So you’re receiving what other employers in the same position would receive.”
Justice Sandra Day O’Connor also suggested that she might support for the Harvard professors’ brief. The Solomon Amendment, according to O’Connor, “says the military must have equal access with any other employer. Now any other employer is subject to the same policy, presumably, of the law school.”
And Breyer, a 1964 graduate of Harvard Law School, specifically cited the Harvard professors’ argument, asking rhetorically, ”Why not interpret the statute in the way that the amicus brief suggests in order to avoid the difficult constitutional question?”
Clement, who became solicitor general this year, just 13 years after graduating from Harvard Law School, at first sought to convince the justices that Congress intended to ensure the military more than “equal access” with the amendment.
He noted that the “equal access” clause was added to the Solomon Amendment last year in an effort to clarify and strengthen the terms of the law. “The statute is a recognition of the fact that the military is not like any other employer for purposes of its policies and its treatment of homosexuals,” Clement said.
But ultimately, the knock-out punch to the Harvard professors’ brief came not from Clement—but from FAIR’s top lawyer Rosenkranz.
Asked afterward whether he had sought to dismiss the statutory claim, Rosenkranz said, “I believe I effectively dodged the question by saying that we did not raise the argument. I hope that’s what I did. I certainly don’t want to lose another vote if that’s a basis for siding in our favor.”
Experts weren’t surprised that FAIR spurned the statutory argument, since Congress could just amend the law again. A Philadelphia attorney who had filed a brief supporting the government’s case, Howard J. Bashman, noted that FAIR had prevailed in the Third Circuit Court by arguing on free-speech, not statutory, grounds.
Laurence H. Tribe ‘62, the Harvard professor who organized the filing of his colleagues’ friend-of-the-court brief, said their statutory argument appeared to be doomed yesterday.
“It’s quite clear that the statutory exit from the constitutional quandary that our brief offered, though it seemed to tempt several justices, is unlikely to represent where the court comes out,” he said.
“It’s clear that Rumsfeld is going to win and that the Department of Defense will prevail,” said Tribe, the Loeb university professor at Harvard, who has argued more than three-dozen cases before the high court.
“The solicitor general’s oral argument was superb,” Tribe said in a phone interview. “He made no mistakes.” But he added that he was “disappointed” by the performance of FAIR’s Rosenkranz.
Jeffrey R. Toobin ‘82, a seasoned legal analyst who viewed the arguments today, concurred with Tribe’s assessment. “Based on the questions [from the justices], I thought there was a clear majority for upholding the Solomon Amendment,” said Toobin, a former editorial chair of The Crimson.
ONLY SOUTER SEEMS PERSUADED
Justice David H. Souter ‘61, a onetime Lowell House resident who provided The Crimson with two tickets to today’s oral arguments, appeared to be particularly sympathetic to FAIR’s free-speech claims. The law schools argue that the Solomon Amendment hinders their ability to transmit a message of nondiscrimination to students.
Souter told Clement, “You are forcing [the law schools], in effect, to underwrite your speech, up to a point, and you are forcing them to change their own message. You are forcing them into hypocrisy.”
But Souter appeared to have few allies in this case. “Only Justice Souter is a very clear vote for the First Amendment argument” offered by FAIR, Tribe said.
The rest of the bench expressed concerns about FAIR’s free-speech claim—except for Justice Ruth Bader Ginsburg, who seemed to be on the fence, and Justice Clarence Thomas, who never spoke.
Scalia suggested that, by FAIR’s logic, nearly anyone could break the law and claim free-expression protections.
“You cannot convert a law into a law directed at First Amendment rights—can you?—by simply saying the reason I am disobeying it is to express, whatever disaffection with the war, homosexuality, or anything else,” Scalia said.
Breyer also said he was concerned that FAIR’s argument might allow some schools to receive federal funds while pursuing anti-gay or racist policies.
“To be clear,” Breyer said to Rosenkranz, “you would also argue that schools that are angry at the military because they believe the military to be too favorable to gays have the same right...and also the same right of Bob Jones University because they disapprove of social mixing of the races?”
The court ruled in 1983 that Bob Jones could not receive a federal tax exemption if it continued to bar interracial dating among its students. A Bob Jones spokesman said the school changed its policy in 2000.
Expressing further doubt with FAIR’s claims, several justices suggested that law schools could counteract the Solomon Amendment by expressing their own views on “Don’t Ask, Don’t Tell” directly to students.
“The remedy for speech you don’t like is not less speech. It is more speech,” Breyer said.
O’Connor emphasized that, even under the Solomon Amendment, law schools can express their opposition to the military’s policy “to every student that enters the room.”
“And when they do, your honor, the answer of the students is, ‘We don’t believe you,’” Rosenkranz said.
Chief Justice John G. Roberts Jr. ‘76 then interjected, “The only reason that they don’t believe you is because you’re willing to take the money. You’re saying, ‘This is a message we believe in strongly, but we don’t believe in it to the penalty of $100 million dollars.’”
In fact, at Roberts’ alma mater, the penalty would be more than four times that figure for violating the Solomon Amendment. Facing Pentagon threats to block federal funding, Harvard Law School announced in October that it would again cooperate with military recruiters.
Six of the nine justices attended law school at Harvard. In September, the University itself filed a brief in the case supporting FAIR’s free-speech claims.
—Staff writer Daniel J. Hemel can be reached at firstname.lastname@example.org.
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