Following the oral argument in the FAIR v. Rumsfeld case on the Solomon Amendment before the Supreme Court this past Tuesday, Harvard Crimson reporter Daniel Hemel wrote George Mason University Law School Dean Daniel Polsby (who filed an amicus brief supporting the government’s position), asking about the rather bizarre argument made by Harvard Law School professors including Professor Lawrence Tribe. In the amicus brief, former Solicitor General Walter Dellinger argues on behalf of Tribe et al. that the Solomon Amendment doesn’t apply to the law school non-discrimination policies resulting in the bar to military recruiters on campus:
I am working on a follow-up to The Crimson’s Solomon Amendment coverage, specifically looking at whether the Dellinger brief still has any legs after yesterday. I was wondering if you could answer three questions:
1. Professor Tribe mentioned the possibility that a pro-FAIR justice, most likely Souter, would take up the statutory argument and bring several colleagues on board. Do you view this as a real possibility, and do you see anyone – other than Souter – who might fill this role?
2. [Solicitor General Paul] Clement argued that the addition of the “equal access” clause to the Solomon Amendment was clearly intended to strengthen the terms of the statute — and that the statute must be interpreted accordingly. If Mr. [Joshua] Rosenkranz [the attorney for FAIR] had decided to advance the statutory argument, how could he – or another lawyer in a similar position – have responded to Clement’s claim?
3. It seemed to me that Mr. Rosenkranz directly contradicted the statutory argument. When Justice 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?” Mr. Rosenkranz answered: “Yes, sir.”
Did you view Mr. Rosenkranz’s statement as a direct contradiction of the Harvard professors’ amicus brief? If so, do you think it will have a significant impact on the justices?
I appreciate your help on this. Should I stay tuned to the ACS blog for a post-argument back-and-forth between yourself and Professor Eskridge?
Dean Polsby responded:
Good questions all. F.A.I.R. resisted the Dellinger argument from the beginning, which wasnt original with Dellinger and which they surely must have known about. I guess they wanted a First Amendment precedent. One can conjecture about why — I have my own theories — but you are better off asking Rosencranz about it directly, or some of the F.A.I.R. people, like Kent Greenfield at Boston College. I’d be surprised if Prof. Eskridge were interested in any more blogging about the Solomon Amendment. He has had his say and I have had mine. He mentioned to me that he may wish to revise and extend his remarks, so you could check with him whether there is more forthcoming. He is very busy. As for Justice Souter, he may persuade others to join him, but for that matter others may persuade him to join them. What good purpose would a statutory dissent serve?
Incidentally, I read your story with interest. You did a good job. I do hope that next time the Crimson covers the gay marriage issue, you will see fit to point out that gays are demanding an exception to the marriage law that generally applies to everyone else. That law says you can get married if: (1) you are of age, (2) are not married and (3) can find someone of the opposite sex who wants to marry you. Applies with perfect neutrality, irrespective of sexual orientation dont you see. I mention this because it is apropos the Crimsons editorial decision to spin I use the word advisedly — the governments case as demanding an exception to a neutral rule.
Hemel’s article today on this subject is “Harvard profs’ brief could still sway Court.” (Hemel’s previous stories on the case are accessible here.) Dean Polsby adds in a message that “Professor Tribe is grasping at straws.” It does our hearts good.
I commented briefly on the Harvard amicus brief in “JAGs not welcome.” Before we leave the subject for the time being, I recommend the transcript of the forum on the FAIR case convened by the Federalist Society Civil Rights Practice Group and moderated by Chapman University Law School Professor John Eastman at the Georgetown Law Center this past October. The transcript is available in PDF here. It is both entertaining and edifying.
My Standard column begins with the scene I witnessed at Yale Law School in October 2003. I didn’t realize then that Yale Law School is the ground zero of the FAIR litigation. Here is Shannon Coffin’s excellent summary of the genesis of the FAIR litigation in his presentation at the Federalist Society forum discussion:
The current dispute, whether the briefs in the case tell you this or not, erupted at a Holiday Inn. It increasingly agitated over the military’s statutory policy on homosexual conduct, the faculty at Yale University Law School clambered for confrontation with the military. The Law School threatened the Army with denial of access to its recruiting function off campus.
Yet Yale Law School threatened the Army with denial of access to its main recruiting function off campus at a Holiday Inn in New Haven, unless the military signed its anti-discrimination pledge, a pledge that included a prohibition of discrimination on the basis of sexual orientation. The Army, of course, could not do so because contrary to popular belief, the “Don’t Ask/Don’t Tell” policy was not in fact an informal policy of the military subject to change at the whim of the Secretary of Defense, but a statutory command enacted by Congress and signed into law by President Clinton.
A bloodless standoff ensued. Yale offered to provide what it considered separate-but-equal treatment to the military in a proposed compromise that would deny access to the Holiday Inn recruiting fair and law school placement office but permit access to the facilities of undergraduate recruiting offices.
The Department of Defense responded that it read the Solomon Amendment to require equivalent access to law students. In other words, the Holiday Inn or bust.
Yale offered a temporary waiver but refused to extend it beyond a semester or two. And when DOD didn’t get the assurances it was seeking regarding access to law students, it began the process of certifying non-compliance with the Solomon Amendment by Yale, a process that, once completed, would deny approximately $300 million in federal funds to the University. And for good measure, and to cover its bases on the statutory interpretation issue, the military asked Congress to amend the Solomon Amendment to codify its equal access interpretation of the law, and Congress complied.
While extended negotiations or, better put, posturing between the two principals was going on at the Pentagon, the Forum for Academic and Institutional Rights, or FAIR — and I want Professor Feldblum to address how many of its members it took to come up with that acronym — brought suit in district court in New Jersey. The organization, which as I understand it was formed solely for the purpose of this litigation, brought suit on behalf of its members, which we eventually learned at DOJ, as a result of standing challenges to their lawsuit, included some specific law schools that receive federal funding, which got rid of their standing problem, and their faculty members and students, alleging that the statute violated their First Amendment rights to free speech and free association.
FAIR lost in district court, but that decision was reversed by a divided panel of the Third Circuit. And here we are.
For the record, I denominated the law schools’ capitulation to the “money talks” impetus of the Solomon Amendment “the Yale Doctrine.” Check out the Standard column to see why.