Feds Ramps Up G.I. Recruiter Fight

Administration wins stay of appellate ruling that nixed statute forcing law school job interviews

Raising the ante in the lawsuit challenging the constitutionality of the Solomon Amendment, a law that denies federal financial assistance to educational institutions that fail to provide “equal access” to military recruiters, the justice department has obtained a stay of a November ruling from the Third Circuit U.S. Court of Appeals in Philadelphia, which found the law unconstitutional.

The effect of the stay, which was granted on January 20 “until further notice of the Court,” will be to leave the Solomon Amendment in effect while the government prepares to submit its petition for review to the U.S. Supreme Court.

The Third Circuit issued the stay in response to a motion filed by the justice department, which argued that there would be irreparable injury to the national defense if law schools, the specific subject of this lawsuit, could once again bar military recruiters on the ground that the military discriminates against gay people. Under the membership rules of the Association of American Law Schools (AALS), an organization to which most law schools belong, schools are supposed to deny placement office privileges, including on-campus interviewing, to any employers who discriminate on the basis of sexual orientation. The AALS takes the position that the “don’t ask, don’t tell” policy governing the military, which bars serves by openly gay and lesbian soldiers, is discriminatory.

The Solomon Amendment dates from 1994, when an upstate New York Republican member of the House, Gerald Solomon, upset that a state court had ordered the law school at the State University of New York in Buffalo to bar military recruiters, succeeded in adding a provision to that year’s Defense Department appropriations bill, providing that no money appropriated under the bill could go to any institution that barred military recruiters.

Over the years, varying interpretations of the provision sprang up, and it was amended several times, including expanding the ban to affect federal money beyond the Defense Department budget.

When it appeared during the late 1990s that law school students might lose significant amounts of federal loan and scholarship assistance if their schools barred military recruiters, many schools decided to make an exception to their non-discrimination policy and allow the military on campus. In turn, Congressman Barney Frank (D-Mass.) was joined by Rep. Tom Campbell (R.-Cal.), who has since left Congress, in shaping an amendment that shielded money intended for student assistance from the purview of the Solomon Amendment, and most schools reinstated their military recruiter ban.

After September 11, 2001, and with a change of political leadership at the top of the Defense Department, the Pentagon began to crack down on enforcement of the Solomon Amendment, and revised its interpretation. Previously, Defense interpreted the amendment as applying only to the subunit of a school that barred the military. If a law school barred military recruiters, that did not affect federal funding to the university’s medical school, for example. After 9/11, the Defense Department dropped that interpretation and wrote to all the leading university law schools and the presidents of their parent institutions, threatening the loss of all federal funding to those universities where law schools maintained their bans. All the major law schools promptly caved in and let military recruiters on campus, and the independent law schools largely followed suit.

The virtual end of the ban on military recruiting stimulated law school faculties and students who were opposed to sexual orientation discrimination to form the Forum for Academic and Institutional Rights—consisting mainly of law schools and individuals from legal education—which filed suit in New Jersey seeking to have the Solomon Amendment declared unconstitutional. As the group began its litigation, it sought a preliminary injunction against enforcement of the amendment, a motion denied by the trial judge. But on November 29 last year, the federal appeals court found the amendment unconstitutional on two theories derived from the First Amendment.

One theory was expressive association, which provides that government interference with the rights of individuals and institutions to associate—or refuse to associate—with each other for purposes of communicating a message violates the First Amendment freedom of speech. The other theory was that the government may not use the grant or withholding of money in order to compel an individual or institution to speak in opposition to that institution’s own viewpoint.

The appeals court found that the application of the Solomon Amendment would violate the right of law schools, which it found to be “expressive associations,” to bar an organization which openly pursued a policy with which they disagreed, and that since recruiting itself is a form of expression which sends a message, requiring the schools to admit military recruiters would be a form of compelled speech. The court also found that the government failed to show that it had a compelling interest that justified violating these First Amendment rights.

These conclusions won the support of two members of the three-member Third Circuit appellate panel, drawing a strongly argued dissent, which asserted that it was “obvious” that the government had a compelling interest in hiring lawyers for the military and that banning on-campus recruitment would have a negative impact on such hiring.

In its motion to stay the court’s decision, the justice department argued quite convincingly that it was highly likely that the Supreme Court would agree to review the case. The kind of case that the Supreme Court has historically been most likely to take up for review is one in which a federal statute has been declared unconstitutional and the government claims that it needs that statute to perform an important function. In this case, the government is arguing that the Solomon Amendment is vitally important to its efforts to recruit sufficient lawyers to staff the Judge Advocate General (JAG) services of the four uniformed branches, especially in light of ongoing hostilities and an expansion in the active duty force.

The justice department also devoted a substantial part of its motion to arguing that the Supreme Court was likely to overturn the Third Circuit’s decision. This part of the motion relied heavily on the arguments accepted by the dissenting member of the Third Circuit panel. The arguments were supplemented by sworn statements submitted by the chief JAG officers of all the services, swearing that they would be unable to recruit sufficient lawyers to meet their needs if they could hold interviews on law school campuses.

In order to persuade the circuit panel to stay its ruling, which otherwise would have gone into effect sometime after January 20 when the federal trial judge in New Jersey issued the preliminary injunction, the government had to show that it was likely to gain Supreme Court review, had a good chance of winning before that court and was likely to suffer irreparable injury if the Third Circuit’s decision went into effect. Without offering any analysis or comment, or expressing any dissent, the three judges who had participated in the November 29 ruling issued their stay.