HLS Students Predict Loss for FAIR

Listening to audio recording, crowd at Harkness gauges that free speech claims failed

Most Harvard Law School (HLS) students reacted pessimistically to Supreme Court oral arguments regarding the constitutionality of the Solomon Amendment yesterday morning, saying that the government’s position—rather than the law schools’ stance—seemed to resonate more with the justices.

At the HLS Harkness Commons, students listened to an audio recording of the court’s arguments just minutes after they ended in Washington. Though only about 12 students were present at the start of the event, over 100 happened in as the clock approached noon.

In the case, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), FAIR is challenging the constitutionality of the Solomon Amendment, a statute that allows the Department of Defense to suspend federal funding to universities that deny “equal access” to military recruiters. FAIR is composed of 36 law schools and law faculties. Though HLS is not a member, Harvard has gone on record supporting FAIR’s arguments.

Throughout the afternoon, most of the students were openly derisive toward Solicitor General Paul D. Clement, who represented the government, and the justices who appeared to side with him. When Justice Antonin Scalia first said “homosexual,” one student mocked Scalia, saying “‘Homosexuals,’ who I hate by the way.” Later when Scalia said “objection to homosexuality” when he meant to say “objection to homosexual discrimination,” one student called out, “Was that [a] Freudian slip, justice?”

Nevertheless, after listening to the oral arguments, most of the HLS students resignedly said that they thought the court would side either with the government or decide the issue on statutory grounds. Most said that the justices did not seem convinced by FAIR attorney E. Joshua Rosenkranz’s arguments with regard to free speech. They pointed out that even the more liberal members of the court—including Justices Steven G. Breyer and John Paul Stevens—seemed skeptical of Rosenkranz’s claims that the Solomon Amendment amounted to “compelled speech” and violated the First Amendment.

“It looks like the government is going to win the case,” Daniel J. Urman, a third year law student, said. “The justices didn’t buy the free speech argument one bit.”

Still, some held out hope that FAIR would win—on statutory, not constitutional grounds—saying that though the free speech arguments appeared unsuccessful, the court could still decide the case in favor of the law schools.

In a friend-of-the-court brief filed in September, 40 HLS professors wrote that the Solomon Amendment requires schools to give recruiters only access that is “equal in quality and scope” to that of other recruiters access, and since all employers must comply with the nondiscrimination requirement, Harvard actually meets the Solomon Amendment’s requirements.