Amicus Harvard Law School Professors In Support of FAIR

Amicus Harvard Law School Professors In Support of FAIR, in Rumsfeld v. FAIR

source: http://www.acslaw.org/node/8623

By Harold Eugene Oliver III, George Washington University Law School

Amici of various Harvard Law School Professors put forth the following arguments in support of FAIR: (1) The Solomon Amendment bars only anti-military policies; it does not give military recruiters a special right to disregard neutral and generally applicable recruiting rules; and (2) Sound principles of judicial restraint counsel that this Court should resolve the question of statutory coverage before turning, only if necessary, to constitutionality.
A collection of faculty members from the Harvard Law School have written this amicus brief on behalf of Forum for Academic and Institutional Rights, Inc. (FAIR) in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.#160; Before the Solomon Amendment, Harvard?like many other law schools?had not allowed the military to utilize its Office of Career Services (OCS) due to the discriminatory employment practices of the military.#160; However, Harvard did not deny the military access to its facilities; the military could use Harvard’s facilities for recruiting if they had been invited by students or student groups.#160; After the government threatened to pull funding in 2002?stating this practice did not meet the requirements of the Solomon Amendment?Harvard was forced to change their policies and allow the military to use its OCS.#160; The authors of this brief are writing because they are troubled by the military and government’s actions, believing them to be inconsistent with the principles of academic freedom and the actual language of the Solomon Amendment.
The faculty’s first major argument is that the Solomon Amendment only applies to schools with an “anti-military” policy that prevents the military from recruiting on campus.#160; They argue that the law school’s policy does not fall into that classification since it does not specifically target the military and, therefore, they did not violate the Solomon Amendment.#160; Instead of focusing on preventing military recruitment, they argue that Harvard’s anti-discrimination policy is in the same vein as other law school policies such as those that prohibit when employers can contact students or regulations about their hiring process?all of which are legal.#160; They argue that if the military did not want to follow the anti-discrimination policy than they should do what any employer does when they do not want to follow one of Harvard’s policies?they can choose not to recruit there.#160; The Solomon Amendment did not intend, according to the authors, to grant the military special privileges in recruiting that even other federal agencies do not have; instead it only intended to prevent clear anti-military or anti-ROTC policies from being promulgated.#160; Additionally, the authors suggest that the Department of Defense’s (DoD) regulations favor their interpretation of the Solomon Amendment; the DoD’s regulations state that the Solomon Amendment’s funding restrictions do not apply to schools that are applying the restriction keeping the military off-campus to all employers.#160; This is the case with the law school’s anti-discrimination policy; it is being applied to all employers recruiting on their campus.#160; As such, this policy is a neutral policy?as opposed to an anti-military one?and its enforcement does not violate the Solomon Amendment.
Their second major argument is the Solomon Amendment only mandates “access” to law schools for recruitment purposes; it does not demand equal access to these schools and any suggestion that it does ignores both the text of the Amendment and its history.#160; To the authors, the text of the Solomon Amendment may not “prohibit or prevent” military recruiters from having access to campus resources.#160; The text says nothing about a law school having to give the military every possible resource available.#160; The legislative history also suggests this; as Solomon himself argued that this Amendment would only apply to schools that had “barred” the military from recruiting on their grounds.#160; They also suggest that there is a massive disparity in DoD regulations on this issue and their litigating position.#160; DoD regulations state that schools only have to prove that access is “equal in quality and scope” when the school is not providing access; a far cry from the permanent requirement for equality that the DoD is arguing for in its litigation.#160; As a result of this, the law schools in question could not have violated a regulation that does not exist and the Solomon Amendment should not be applied in this case.
Since the Solomon Amendment only applies to anti-military policies?not neutral and universally applied guidelines?and that it only demands access, not equality, the Harvard Law School faculty argues that the Supreme Court should rule in favor of FAIR and prevent the federal government from pulling funding as a result to the schools’ enforcement of anti-discrimination policies.

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