HLS Veterans Won’t Back Solomon Brief

Groups of former service members from three universities filed a brief in a Philadelphia federal appeals court yesterday that claimed law students suffered when military recruiters’ access to campuses is restricted.

But the Harvard Law School Veterans Association (HLSVA) chose not to join the friend-of-the-court brief that backs the 1996 Solomon Amendment, under which the Pentagon has threatened to cut federal funding for institutions that refuse to cooperate with military recruiters.

Yesterday’s action from law students at the University of California-Los Angeles (UCLA), the College of William and Mary and Washburn University is the latest in a series of friend-of-the-court briefs in the high-profile case.

The brief contends that veterans will likely be victims of discrimination at law schools if the Solomon Amendment is overturned.

“Students with a military affiliation would be implicitly marked by their schools’ action as linked to an employer whose conduct was so reprehensible as to be undeserving to set foot on campus,” the groups argued.

Earlier this month, the HLSVA told the UCLA pro-Solomon Amendment activists that it would not become involved in the widening legal battle.

“Our organization maintains a strict policy of not taking sides on controversial issues,” said the group’s president, second-year Harvard Law School (HLS) student Andrew S. Friedberg.

In January, HLS faculty signed a friend-of-the-court brief arguing that the Pentagon has misinterpreted the Solomon Amendment.

The professors’ action came on the heels of a brief from the student gay rights group HLS Lambda, which also endorsed the claims of the Forum for Academic and Institutional Rights (FAIR).

FAIR, a network of 20 law schools, has sued six senior Bush administration officials and challenged the 1996 statute on First Amendment grounds.

HLS requires that recruiters who use its Office of Career Services pledge to not discriminate on the basis of sexual orientation.

The military’s “don’t ask, don’t tell” policy that requires the discharge of openly gay service members and the Pentagon refusal to sign the nondiscrimination pledge violates this HLS policy.

In May 2002, then-HLS Dean Robert C. Clark granted military recruiters an exemption from the nondiscrimination policy after the Pentagon threatened to cut hundreds of millions of dollars in federal funding to the University.

Prior to Clark’s decison, HLSVA served as a liasion between Pentagon recruiters and students who were interested in military service.

Under that arrangement, “the military was able to recruit effectively and the administration did not have to cave on its policies,” Friedberg said.

But according to yesterday’s brief filed by the veterans, the military would likely suffer a shortage of lawyers if the Solomon Amendment was repealed.

Harvard and the 165 other members of the American Association of Law Schools “are excused from locking the schoolhouse doors to military recruiters only so long as the Solomon Amendment remains in effect in its current form,” according to the brief.

“A lack of military lawyers could increase the likelihood of war violations by soldiers and unacceptable civilian collateral damage during military operations,” the veterans’ groups argued.

FAIR has requested that the Third Circuit Court of Appeals issue a temporary order immediately halting enforcement of the Solomon Amendment.

But in November, U.S. District Court Judge John C. Lifland, a 1957 HLS graduate, denied FAIR’s motion for an injunction suspending the statute.

“The trial court, in reaching its conclusion, had to engage in a balancing of the hardships,” said Howard J. Bashman, a Pennsylvania appellate lawyer who filed yesterday’s brief on behalf of the veterans’ groups.

“We’re trying to draw the court’s attention to the perspective of law students who are interested in joining the military or who are currently serving,” said Bashman. “There’s not so much of a new legal argument.”

“We wanted to offer a perspective based on our personal experience,” said Cpt. Phillip E. Carter, chair of the UCLAW Veterans Society, which spearheaded the filing of yesterday’s brief.

FAIR’s legal team downplayed the impact of yesterday’s brief on the case.

“I don’t think it will have a huge impact one way or another,” said FAIR founder H. Kent Greenfield, a professor of law at Boston College.

FAIR’s lead attorney, E. Joshua Rosenkranz of the New York law firm Heller Ehrman White & McAuliffe, declined to comment, saying that he had not yet read the brief.

In an interview with The Crimson last week, Rosenkranz said that the Third Circuit will likely hear oral arguments in the case in early May.

“Harvard’s spring recruiting will most likely be under the current Solomon Amendment regime,” he said.

According to Bashman, the Third Circuit has a reputation for being a moderate court, but the recent addition of three Bush nominees could tilt the circuit’s ideological balance toward the right.

“The three new judges could have a significant impact by making the court more conservative over time,” he said.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.