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Future of Campus (Harvard) Military Recruiting Hangs in Balance at Supreme Court
Harvard Crimson (Massachusetts) ^ | Sunday, December 04, 2005 6:28 PM | DANIEL J. HEMEL

Posted on 12/04/2005 7:07:16 PM PST by rface

The future of military recruiting at Harvard Law School hangs in the balance as the Supreme Court prepares to hear oral arguments in the high-profile Solomon Amendment case Tuesday morning.

In case you’ve tuned out three years of protests and press conferences on campus, here’s the issue in a nutshell: the Solomon Amendment, first passed by Congress in 1994, blocks federal funding for universities that limit military recruitment. It poses a dilemma for Harvard Law School, which requires all on-campus recruiters to sign a pledge saying they won’t discriminate against gays and lesbians. The military, which bars gays and lesbians from serving openly under its “don’t ask, don’t tell” policy, refuses to sign the pledge.

For Harvard, the financial stakes are enormous. If the court upholds the Solomon Amendment, Harvard would lose over $400 million in federal funds each year unless it continues to exempt the military from the nondiscrimination pledge.

The case now before the Supreme Court, Rumsfeld v. FAIR, pits the secretary of defense and five other cabinet officials against the Forum for Academic and Institutional Rights, a nationwide coalition of 36 anti-Solomon Amendment law schools. Harvard is not a member of the coalition, but the University has filed a friend-of-the-court brief backing FAIR, and half of the Harvard Law faculty has submitted a separate brief in the case.

In a move that reflects the case’s watershed significance, the Supreme Court announced last month that it will release audiotapes of tomorrow’s proceedings to news organizations immediately after oral arguments. The court has only arranged for the prompt release of audiotapes in a handful of landmark cases—beginning with Bush v. Gore in December 2000.

FAIR argues that the Solomon Amendment violates law schools’ freedom of association by forcing them to cooperate with military recruiters. The coalition also argues law schools have a “right to be free from government-compelled speech,” and that they can’t be forced to disseminate the military’s recruiting messages.

But the justices could avoid the complicated First Amendment issues by deciding the case on other grounds, and Tuesday’s oral arguments could provide an indication as to whether the high court will sidestep FAIR’s controversial claims.

IS IT EVEN A CONSTITUTIONAL CASE?

The 40 Harvard Law professors who filed a friend-of-the-court brief in September don’t think so. “[T]here is no way of deciding the Solomon Amendment’s constitutionality, either way, without venturing into uncharted terrain,” the professors wrote.

The text of the Solomon Amendment requires schools to give recruiters access to students “at least equal in quality and scope to the access...that is provided to any other employer.” Since all employers must comply with the nondiscrimination requirement, Harvard and other law schools can hold the military to this pledge without violating the Solomon Amendment, according to the professors’ brief.

But will FAIR’s lead lawyer, E. Joshua Rosenkranz, present the Harvard professors’ argument?

“The answer is almost certainly no,” according to Laurence H. Tribe ’62, the Loeb university professor at Harvard who was an organizer of the faculty’s brief and who has argued more than three-dozen cases before the high court.

“FAIR has steadfastly resisted our effort to avoid the constitutional showdown it seeks by pursuing the statutory path,” Tribe wrote in an e-mail.

According to a New York University constitutional scholar who is one of the named plaintiffs in the initial FAIR suit, Sylvia Law, “the arguments presented in the Harvard brief are not as strong as those presented by FAIR.”

The military and its supporters in Congress “actually want more than equal treatment; they want special treatment,” Law wrote in an e-mail. “Were the Court to adopt the statutory reading advanced by the Harvard brief, we can be pretty confident that Congress will quickly change the words.”

But the Harvard professors’ brief could still sway the justices—even if FAIR doesn’t raise the point. The dean of George Mason University School of Law and a prominent Solomon Amendment supporter, Daniel D. Polsby, wrote in an e-mail, “I would not be surprised if the Dellinger brief came up at oral argument.” (The lead counsel on the Harvard faculty brief is actually a Duke University professor, Walter E. Dellinger III, who served as the Justice Department’s top lawyer before the high court under President Clinton.)

The Harvard professors are bound to hold some sway with the justices. After all, six of the current justices attended law school here—including Chief Justice John G. Roberts, Jr. ’76, who once took Tribe’s constitutional law class.

IS THIS A NATIONAL SECURITY CASE?

Meanwhile, the government’s lawyers will contend that the Solomon Amendment is necessary “in order to recruit the most talented men and women into the armed services,” as they argued in a brief filed this past July.

The court historically has granted extra deference to the military. And according to Polsby, the stipulations of the Solomon Amendment are far less onerous than, say, the military draft.

But according to a September brief from FAIR, “the courts traditionally defer to the military” only on “complex, subtle, and professional” decisions regarding issues such as strategy and training. By contrast, a court of nine law school graduates is “perfectly competent” to decide whether the military needs campus access “in order to attract the attention of brilliant young lawyers.” FAIR will argue that the Solomon Amendment is unnecessary for that purpose.

Government attorneys “have not offered a speck of evidence that on-campus law school recruiting helps them at all,” according to Law, the NYU scholar.

But government lawyers could cite a friend-of-the-court brief filed by two former defense secretaries, four admirals, and 20 generals—including former presidential candidate Wesley K. Clark and two former chairmen of the Joint Chiefs of Staff—testifying that the Solomon Amendment is “essential” to the military’s mission.

“The daily news about the military’s difficulty in recruiting does not create a good atmosphere for us,” Law acknowledged.

Law and the other plaintiffs hope that—rather than deciding the case on statutory or national security grounds—the justices tackle FAIR’s innovative First Amendment arguments head-on.

But many legal experts fear that if FAIR wins a “constitutional showdown,” the high court might also scrap other laws that place conditions on schools that take federal funds—such as the 1964 Title VI statute barring racial discrimination, and the 1972 Title IX law against sex bias.

Among Harvard law professors, the first fear is that FAIR might lose—and military recruitment will continue.

The second—and perhaps more daunting—fear is that FAIR might actually win.

The next installment in The Crimson’s two-part Rumsfeld v. FAIR preview will explore the far-reaching ramifications of FAIR’s First Amendment arguments.

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


TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: answer; antiamerica; antimilitary; antiwar; campuscommies; canswer; codepink; communism; communists; dims; docket; dontaskdonttell; greenparty; harvard; harvardlawschool; hateamericafilth; highereducation; hippies; hippiesagainstsoap; homosexualagenda; iraq; iso; military; nion; professors; rcp; recruitment; rumsfeldvfair; saddamsupporters; scotus; solomonamendment; terrorsupporters; ufpj; wardchurchill; wot; wwp; youthagainstsoap

1 posted on 12/04/2005 7:07:17 PM PST by rface
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To: rface

This case is the number 2 reason Spector delayed the Alito confirmation hearings. The number 1 reason is the abortion notification now in front of the court.

Alito will recuse himself from te actual decison, putting the Constitutionality of the decisions at risk.


2 posted on 12/04/2005 7:11:34 PM PST by Balding_Eagle (God has blessed Republicans with really stupid enemies.)
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To: rface
Among Harvard law professors, the first fear is that FAIR might lose—and military recruitment will continue.

Jerks.

3 posted on 12/04/2005 7:14:54 PM PST by SIDENET ("IT'S A COOKBOOK!!!")
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To: Balding_Eagle
common sense tells me that schools that don't allow recruters on campus shouldn't expect to see federal $$....because that's the rules. I don't think it is a constitutional issue....I cannot imagine how it could be!

Harvard doesn't have to allow recruters on their campus, since they are a private school.....but they know the price of this action......no constitutional issue....is there?

4 posted on 12/04/2005 7:16:12 PM PST by rface ("...the most schizoid freeper I've ever seen" - New Bloomfield, Missouri)
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To: SIDENET
Bigger question...

Does a government that distributes funding have the right to determine terms and conditions under which those funds are distributed?

5 posted on 12/04/2005 7:18:05 PM PST by gov_bean_ counter (It is easy to call for a pi$$ing contest when you aren't going to be in the line of fire.)
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To: rface

Nobody has a RIGHT to federal funds. They have rights to life, liberty, and the pursuit to happiness, but they don't have a right to put their hands in the till.

It seems to me that that is the basic issue.


6 posted on 12/04/2005 7:18:44 PM PST by Cicero (Marcus Tullius)
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To: rface

I am not an attorney, that may be self evident. However, I think the only cases that come before SCOTUS are those that deal with Constitutional issues.


7 posted on 12/04/2005 7:19:47 PM PST by Balding_Eagle (God has blessed Republicans with really stupid enemies.)
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To: rface

Just enforce USC Title 18, Chapter 115 Sec 2388. Case closed.


8 posted on 12/04/2005 7:22:34 PM PST by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: Cicero
"Nobody has a RIGHT to federal funds. They have rights to life, liberty, and the pursuit to happiness, but they don't have a right to put their hands in the till."
Well said.
9 posted on 12/04/2005 7:28:42 PM PST by Marine_Uncle (Honor must be earned)
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To: rface

What recruiters? The ones from our military or the taliban and the Iraqi insurgents?


10 posted on 12/04/2005 7:29:47 PM PST by Random Access (ol)
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To: rface

Congress should simply remove this case from the Court's jurisdiction. Of course, that would take the balls to face down the Shrieking Eels on the other side of the aisle...


11 posted on 12/04/2005 7:32:24 PM PST by an amused spectator (If Social Security isn't broken, then cut me a check for the cash I have into it.)
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To: Cicero

I don't see how they win this case. Gays are not a protected class in this country. Unless they start making up some equal protection garbage (which has been liberal courts' modus operandi for ages now), I don't see what grounds they have.

How are they going First Amendment on this one? Their freedom of speech is one thing, but having the government thrown off the premises because it does not Havard's own system of governance AND THEN demanding that funding should continue pushes this into some nebulous law-law ;) land.


12 posted on 12/04/2005 7:33:21 PM PST by CheyennePress
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To: rface
Why in the hell is Harvard, the wealthiest college in America, getting $400 million a year?
13 posted on 12/04/2005 7:36:30 PM PST by bybybill (GOD help us if the Rats win)
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To: CheyennePress

well of course, you said it yourself, they just "make it up" so they can make law in a case like this. this case shouldn't even be before the court, its open and shut, congress made a law, its not abriding on anyone constitutional rights, it should be followed.


14 posted on 12/04/2005 7:37:26 PM PST by oceanview
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To: CheyennePress

A supreme court that could make up a constitutional right to buggery, which reversed an earlier decision, could make a case for nearly anything, unfortunately. It's why we have to take our courts back from the judicial tyrants who are running them now.


15 posted on 12/04/2005 7:39:36 PM PST by Cicero (Marcus Tullius)
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To: bybybill

because when you look at who actually runs the government apparatus in this country - its loaded top to bottom with ivy leaguers.


16 posted on 12/04/2005 7:40:08 PM PST by oceanview
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To: gov_bean_ counter
Does a government that distributes funding have the right to determine terms and conditions under which those funds are distributed?

He who pays the piper picks the tune.

17 posted on 12/04/2005 7:40:39 PM PST by nwrep
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To: rface

I hear military recruiters kidnap college students and send them straight off to fight in wars. /sarcasm


18 posted on 12/04/2005 8:12:29 PM PST by coconutt2000 (NO MORE PEACE FOR OIL!!! DOWN WITH TYRANTS, TERRORISTS, AND TIMIDCRATS!!!! (3-T's For World Peace))
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To: rface

The Supreme Court has no authority under the Constitution to force Congress to give money to Harvard, or anyone else. To do so would be to usurp a power specifically granted to Congress by the Constitution. They can decide spending is unconstitutional, but can't decide not spending is.


19 posted on 12/04/2005 8:21:28 PM PST by Hugin
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To: Mears

bump


20 posted on 12/04/2005 8:22:08 PM PST by Mears (The Killer Queen)
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To: CheyennePress

I would take them at their word. They prefer gays to our military. Fair enough. Not taking fed money has nothing to do with Freedom of Speach or Association.

I'm not really sure what the "Ivy League" stands for anymore, it seems to be sliding and sliding. Another 20 years it will just mean "weird leftist propagandist".

Harvard has already done plenty of damage to their reputation by knuckling under to feminists rather than defend the truth of male intellectual superiority (at the far end of the performance scale - not fishing for an argument girls - it is beyond discussion).

Now they want to knuckle to gays. What exactly do they stand for?


21 posted on 12/04/2005 8:27:50 PM PST by Mr. Rational (God gave me a brain and expects me to use it)
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To: rface

This should be a slam dunk. Harvard can do whatever they want, however they are not entitled to Federal funds if they act contrary to Government policy. Not getting Federal funds doesn't restrict your freedom of speech. Harvard simply has the opportunity to put its money where it's values are.


22 posted on 12/04/2005 8:34:18 PM PST by rbg81
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To: rface

Don't recruiters have any 1st amendment rights?

Its not the gay pledge that is the problem.The CIA doesn't want military recruiters on their turf. Harvard is the CIA's frat house.


23 posted on 12/04/2005 9:29:18 PM PST by Candor7 (Into Liberal Flatulence Goes the Hope of the West)
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To: Mr. Rational

Let's not forget their recent attempts to install "speech codes."

Not that I think about it, it's hilarious that they're trying this stunt. Not too long ago their adminstration was arguing that they should be able to punish those who used "incendiary and hateful speech."

So there you go. Now Harvard is trying to say that it should still be entitled to government money based on their right to free speech.

In other words, freedom of speech only applies when the right thing is said, namely, how Harvard decides to define it for the day.

http://archives.cnn.com/2002/EDUCATION/11/24/harvard.speech.ap/


24 posted on 12/04/2005 10:38:59 PM PST by CheyennePress
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To: rface

We all know that their real agenda is to have the US be defeated in the War on terrorism.


25 posted on 12/04/2005 10:44:08 PM PST by Thunder90
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To: Cicero
A supreme court that could make up a constitutional right to buggery...

Priceless


26 posted on 12/04/2005 10:46:33 PM PST by nathanbedford (Lose your borders, lose your citizenship; lose your citizenship, lose your Bill of Rights)
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To: rface
Another reason the SCOTUS is so important.

It the colleges win versus the Secretary of Defense!!! then you all can start the countdown of the return of Jesus Christ--because the World has gone to HELL in a hand basket.

I am not a lawyer, but I am telling you----when the Military loses this fight, then end the discussion of what a free country we are.

End of soapbox.

27 posted on 12/04/2005 10:47:42 PM PST by SkyPilot
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To: rface

If private businesses can recruit on campus there is no reason why the military can't. I've made a career of the military and it has been wonderful. If the students don't want the military around then why don't they just not talk to the recruiters? Why ban recruiters when there are some who want to join. After all a big chunk of student loans can be paid off by Uncle Sam.


28 posted on 12/05/2005 10:44:03 AM PST by rfreedom4u (Native Texan)
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To: rface

It's obvious for us, but not for the commies from Harvard...


29 posted on 12/05/2005 3:05:47 PM PST by Tarkin (Janice Rogers Brown to the SCOTUS)
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To: Tarkin

I don't know why the court even took this case. The law is well settled that nobody is entitled to federal funding of abortions or education, i.e. if you don't register for the draft you don't get a student loan.

My guess is that there are too many Harvard and Yale grads clerking this year.

For a more balanced article, see:

http://www.csmonitor.com/2005/1206/p03s01-usju.html


30 posted on 12/06/2005 9:41:17 AM PST by KingofZion
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To: CheyennePress

I really don't think they know how far they have fallen. It's really a shame.

What schools are there to replace these homes of lunacy?

I was never comfortable there myself - as an engineer in a school with no engineers, but a bunch of full of themselves liberal arts types - but still there was some sense that they were respectable, even if soft. Now they aren't respectable, and other people will know.

What does it mean now when someone says "I went to Harvard"? Where can smart kids go to get an education, rather than an indoctrination?


31 posted on 12/08/2005 6:59:13 PM PST by Mr. Rational (God gave me a brain and expects me to use it)
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To: rface

For those students who wish to speak with a recruiter, it's not fair to make them go somewhere ELSE to talk to them. They aren't there to draft.

Gag orders need to be issued on this... schools, private or not, must learn to deal with it.


32 posted on 01/31/2007 9:34:23 AM PST by deckie1985
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