High Court to Hear Case on Recruiting by Military

Argument set for next week; broad implications are seen for academic freedom

When the Air Force came to Harvard Law School in October to recruit students for its Judge Advocate General’s Corps, Adam R. Sorkin, a second-year student, signed up for an interview.

Mr. Sorkin, who is gay, knew he would be turned down for the job under the military’s “don’t ask, don’t tell” policy. But he went anyway, to argue for an end to the ban on homosexuals in the armed services.

“I shouldn’t have to go back into the closet to serve my country,” Mr. Sorkin said a week after the interview, at a protest rally on the law-school campus. He stood in the middle of a group of roughly 100 students, some with duct tape plastered across their mouths and the words “Don’t Ask, Don’t Tell” scrawled on the tape in black ink. Others carried signs that read “Don’t Ask, Don’t Tell, Don’t Recruit Here.”

Mr. Sorkin, whose coat bore a sticker with two pink soldiers silhouetted against a white background, said he was disappointed when the law school reluctantly agreed in September to lift its year-old restriction on military recruiting, after the Pentagon threatened to withhold $300-million in federal funds from the entire university.

“Harvard should not send the message to the world that its principles can be bought,” he said.

Some students, though, were pleased with the law school’s reversal, saying the restrictions deprive students of the opportunity to learn about legal careers in the military, and suppress the free exchange of ideas that is at the heart of higher education. Recruiting bans, said Daniel J. Sullivan, a second-year law student who interned with the Navy JAG last summer, “send the message to students that considering the military is out of the mainstream. It makes them wary of showing interest.”

Ultimately, the fate of military recruiters at Harvard and nationwide will be decided by the U.S. Supreme Court, which meets next week to consider the constitutionality of a decade-old law, known as the Solomon amendment, that allows the government to deny federal funds to colleges that bar or limit military recruiting.

If the court strikes down the law, and upholds an earlier ruling by the U.S. Court of Appeals for the Third Circuit, then Harvard could restore its restrictions on recruiting without risking federal funds; if it reverses the lower court’s decision, the law will remain in place.

On its face, the case is a First Amendment fight over free speech and the power of the purse. In a larger sense, however, it is a battle over academic freedom, and the right of colleges to govern themselves as they see fit.

If the Defense Department prevails, critics of the Solomon amendment fear there will be nothing to stop the federal government from using its budget oversight to achieve all kinds of ideological ends. The government could withhold federal funds from universities that engage in stem-cell research, for example, or that provide birth control to their students.

As Robert C. Post, a law professor at Yale University, puts it: “What’s to prevent this new Congress from cutting off all funds if the biology department doesn’t teach intelligent design? It could turn the whole country into Kansas.”

The Power of the Purse

As the Defense Department and Congress see it, the case is not about free speech, or even academic freedom, but about the authority of lawmakers to decide how taxpayers’ money is spent. If the Solomon amendment were struck down, the government argues, it would deprive Congress of its ability to attach conditions to federal funds.

On the other side of the case is the Forum for Academic and Individual Rights, or FAIR, an association of 38 law schools and law-school faculties. It argues that the Solomon amendment infringes upon law schools’ freedom of association by forcing them to associate with the military, and by extension, its ban on gays and lesbians in the armed forces. The law schools also argue that the amendment requires them to “disseminate, carry and host” the military’s message through their career-services offices and recruiting fairs.

But the military and its supporters say that the Solomon amendment does not compel anything, since institutions are free to ban military recruiters if they forfeit federal funds. The law schools are “arguing that the government is holding a gun to their heads when they give them $200-million in grants,” says Shannen W. Coffin, who was a deputy assistant attorney general in the Justice Department when the case was filed.

The law schools also say that the amendment restricts free speech by forcing law schools to suspend their antidiscrimination policies for the sake of a single employer. But Solomon’s supporters say law students are mature enough to distinguish between a law school’s policy and that of an outside employer.

“Law-school students are not babies. They should be allowed to think as adults,” says Gerald Walpin, a corporate litigator who wrote an amicus brief supporting the government for the Center for Individual Rights, a nonprofit group that brought the landmark affirmative-action lawsuits against the University of Michigan at Ann Arbor. “When universities stifle healthy discourse, we substitute academic censorship for academic freedom.”

The Cost of Idealism

For such a controversial law, the Solomon amendment has surprisingly obscure origins. The bill’s sponsor, Gerald B.H. Solomon, a Republican representative from New York, offered the amendment in 1994 to protest a court-ordered recruiting ban by the State University of New York.

Debate on the measure was brief, with only two members of Congress voicing concerns about academic freedom. One of them, Rep. Robert A. Underwood, a Democrat from Guam, noted that even the Defense Department had called the amendment “unnecessary and duplicative.”

And while Mr. Solomon alluded to recruiting difficulties in his remarks during the debate, other supporters made clear that the amendment served symbolic purposes as well. Rep. Richard Pombo, a Republican from California and a cosponsor of the amendment, urged his colleagues to “send a message over the ivory tower of higher education” that colleges’ and universities’ “starry-eyed idealism comes with a price.”

When the amendment passed, 271 to 126, that price was limited to funds from the Department of Defense. Since then, Congress has expanded the penalty to include money from the Departments of Labor, Health and Human Services, Transportation, and Homeland Security; the National Nuclear Security Administration; and the Central Intelligence Agency.

While many colleges have policies that bar discrimination on the basis of sexual orientation, law schools have been at the forefront of the fight against the Solomon amendment because they are more likely to extend their policies to outside employers.

To date, however, only three law schools have had their federal funds cut off: New York Law School, William Mitchell College of Law, and Vermont Law School. All three are free-standing law schools, and receive little or no federal dollars.

Until 2001, law schools were able to comply with the law by providing limited access to military recruiters. Harvard, for example, allowed the military to recruit at its veterans affairs’ office, but did not volunteer its employees to arrange interviews.

After the terrorist attacks of September 11, 2001, however, the military did an about-face. In dozens of letters to law schools, the Defense Department charged that its recruiters had been “inappropriately limited in their ability to recruit” law students and ordered the colleges to provide the military with access “equal in quality and scope” to that given to other employers.

It was that demand for assistance that prompted FAIR to seek an injunction against the Solomon amendment in a U.S. district court in September 2003. The court denied the request, and FAIR appealed.

The appeals court reversed the lower court’s decision, ruling that the government had failed to show that its recruiting needs justified the infringement on law schools’ First Amendment rights. In its ruling, the court cited a 2000 decision by the U.S. Supreme Court, Boy Scouts of America v. Dale, that allowed the Boy Scouts to exclude a gay assistant scoutmaster.

In its appeal to the Supreme Court, the Defense Department argues that its case is not like the Boy Scouts decision because recruiters are not members of law schools the way a troop leader is a member of the Boy Scouts, and because their presence on campus is “temporary and episodic,” not permanent. It adds that while troop leaders speak on behalf of the Boy Scouts, military recruiters speak for the military, and not for the law schools.

FAIR counters that infringement is infringement, regardless of the duration and frequency. The only question, David D. Cole, a professor of law at Georgetown University, said at a recent forum there, is whether the Supreme Court will grant law schools the same deference it gave the Boy Scouts.

“If the court is so willing to protect the right of the Boy Scouts to promote homophobia, shouldn’t it also be willing to protect the rights of law schools to promote nondiscrimination?” he asked.

Is It Necessary?

Ultimately, the Supreme Court’s decision in this conflict could hinge on two questions: whether the military can prove that it needs the Solomon amendment to recruit effectively, and whether the judges consider colleges’ bans on military recruiting to be speech, or conduct.

So far, the military has done little to convince the court on the first argument. “The government has failed to proffer even a shred of evidence that the Solomon amendment materially enhances its stated goal,” the appeals court wrote in its decision. In fact, declarations in the appeals-court case filed by members of each of the branches of the military show that the military has had a recent glut of candidates for its Judge Advocate General’s Corps. The Navy receives 350 to 400 applications each year, and hires only 60 officers; the Marine Corps averages 200 applications per year and accepts 40 officers.

Still, each of the representatives argues that denying the military equal access to law schools would hamper the military’s ability to recruit the most qualified candidates, and place it at a significant competitive disadvantage with major law firms and corporate employers. To compete with these other employers, many of whom offer higher salaries, the military needs “a direct forum in which to communicate the many advantages of military service,” says Navy Rear Adm. Jeffrey L. Fowler.

Other recruiting methods, such as direct mailings, television commercials, and radio advertisements, are “no substitute” for “a personal dialogue,” he says.

But even the deputy under secretary of defense for military personnel policy admits that it is unclear whether overturning Solomon would really hurt the Judge Advocate General’s Corps, given that only a handful of law schools have placed restrictions on recruiting so far. Whether it does, says William J. Carr, the deputy under secretary, depends on “whether the cooperative behavior is motivated by Solomon, or whether it’s genuine.”

“I would guess that if Solomon were struck down, then there would be an increased frequency of law schools cooperating poorly with recruiting,” he says.

There are some signs that the bans could become more widespread if the Supreme Court upholds the appeals court’s decision. The Association of American Law Schools, which amended its bylaws in 1997 to allow its members to play host to the military without running afoul of its nondiscrimination policy, has already indicated that it hopes to eliminate the exemption for military recruiters if Solomon is struck down. If it does, the association’s 166 members will again be bound by the bylaws to bar recruiters, including the military, that discriminate against gay students.

Equally critical to the outcome of the case is whether the Supreme Court considers law schools’ bans to be speech or conduct.

If the court views them as speech, then the Defense Department will have to prove that the law serves a compelling government interest and is as narrowly tailored as possible to achieve that interest. If, on the other hand, the court determines that the bans are “expressive conduct” — that is, conduct involving elements of speech — then the Pentagon must only prove that its recruiting aims would be achieved “less effectively” without the amendment.

FAIR, and the appeals court, say that the Solomon amendment is unconstitutional under either standard of review. They maintain that the military has provided no evidence that it needs the law, and argue that Congress exceeded its authority when it used the amendment to prohibit conduct outside the scope of the research programs being financed. Under the Solomon amendment, the government can withhold funds from the entire university, even though it is only the law school that is violating the amendment.

Congress is using its spending leverage “to coerce universities to abandon protected speech in areas wholly unrelated to its exercise of its spending power,” says Kathleen M. Sullivan, a constitutional-law professor at Stanford Law School.

A Matter of Deference

A third, but no less critical factor, will be who the Supreme Court pays greater deference to: academe or Congress. While the Supreme Court has traditionally granted greater First Amendment protections to colleges and universities than to the public at large, it has also consistently yielded to Congress on decisions related to the military. In fact, the court has never declared a statute designed to support the military unconstitutional on First Amendment grounds, according to the government brief in the Solomon case.

“The court always defers to military needs over all over things,” says Carter G. Phillips, a former assistant to the solicitor general who has argued 47 cases before the Supreme Court. “The court pays lip service to academic freedom, but often, it’s not much more than that.”

But FAIR says that Congress should not get deference in the Solomon case because the law regulates the conduct of nonmilitary personnel in a nonmilitary setting, and because Congress has no unique expertise on legal recruiting.

The wild card in the case is the new chief justice, John G. Roberts Jr. While Mr. Roberts has professed great respect for Supreme Court precedent, he also has a considerable higher-education background, having represented colleges, faculty members, and the National Collegiate Athletic Association as a lawyer in private practice.

That experience might make Mr. Roberts “more sensitive to some of the law schools’ concerns about the heavy-handed nature of Congress’s interference,” says Mark Rahdert, a constitutional scholar at Temple University.

But Mr. Phillips, the former solicitor general, says he thinks the Supreme Court will be “frustrated” by the “overheated rhetoric” on both sides of the dispute and the lack of evidence on the government’s side. He predicts that the judges will reverse the appeals court’s decision, then send the case back to the lower court for further proceedings.

“People will get to shout on both sides that this is the end of the world either way,” says Mr. Phillips, “and then the court will issue a legal ruling that has meaning for 30 seconds.”

http://chronicle.com Section: Government & Politics Volume 52, Issue 15, Page A1