Harvard Law School students and faculty members have filed amicus briefs on behalf of the Forum for Academic and Institutional Rights this week, joining a growing chorus of Solomon Amendment litigants that already includes Yale Law professors and student groups.
The students’ brief, which was filed on behalf of student groups from Harvard and eight other law schools as well as the American Civil Liberties Union and other parties, claims it is within the rights of FAIR — a largely anonymous coalition of law schools and faculty — to file suit without having to reveal the names of its members. The faculty brief challenges the Department of Defense’s interpretation of the 1995 Solomon Amendment, which the government has used to force law schools to allow military recruiters equal access to their students.
The Harvard briefs were two of six briefs filed on FAIR’s behalf this week from groups including the American Association of Law Schools, an association of 166 law schools.
“The government’s assertion that organizations, like FAIR, cannot assert associational standing unless they name their members threatens core First Amendment rights, is contrary to the law, and should be rejected,” the students’ brief says.
Second year Harvard law student Amanda Goad, who serves as president of Harvard Law School Lambda — a group promoting equal rights for peoples of all sexual orientations — which signed the brief, said the members of HLS Lambda wanted to aid FAIR’s cause.
According to the government’s interpretation of the Solomon Amendment, any university that bars military recruiters from its law school could potentially lose all federal funding.
Harvard Law School, Yale Law School and many other law schools nationwide eased restrictions on military recruiters’ access to their students after 2001, when the administration of President George W. Bush ’68 began to aggressively enforce the amendment.
Yale receives more than $350 million in federal funds each year. Harvard receives more than $300 million.
Prior to 2001, many law schools had limited military recruiters’ access to their career offices because the military’s “don’t ask, don’t tell” policy on homosexuality prevented them from adhering to universities’ nondiscrimination clauses.
On Sept. 19, 2003, FAIR filed suit against the Department of Defense, arguing that the Solomon Amendment had been misread and misapplied and violates law schools’ constitutional rights. Three similar suits, from two Yale Law School student groups, 44 Yale Law professors and a group of law professors and students at the University of Pennsylvania, were subsequently filed.
Yale Law professor Robert Burt, a lead plaintiff in the Yale faculty lawsuit, said he could think of several possible reasons why Harvard Law faculty members had filed an amicus brief instead of a lawsuit.
“Filing your own lawsuit is a lot more work than filing an amicus brief,” Burt said. “And they may have felt that enough lawsuits had been filed between FAIR and the Yale suits.”
Goad said she understood why a Harvard Law faculty or student suit might be beneficial, but said she was not ready to predict whether such suits would be forthcoming.
“It can be counter-productive to just file more suits,” Goad said. “We want quality over quantity.”
Adam Sofen LAW ’05, a member of OutLaws, a plaintiff in the Yale student suit, said he believed that while these amicus briefs might not have a direct impact on the Yale student suit, the additional support might be helpful.
“Courts respond to both public opinion and opinion in the legal establishment,” Sofen said. “If there are a number of voices speaking out on our behalf, it couldn’t hurt.”