It had always been an uphill battle.
But two weeks ago, the U.S. Supreme Court turned that hill into a towering mountain for hundreds of law professors who have been aiming for the top since the late 1990s.
In its March 6 ruling on Rumsfeld v. Forum for Academic and Institutional Rights, the high court rejected the position of 36 law schools opposed to the military’s “don’t ask, don’t tell” policy. The decision upheld the 1996 Solomon Amendment, a federal law requiring universities to open their doors to military recruiters as a precondition for receiving federal funding.
But FAIR, fighting for the right to exclude the military from career recruiting on college campuses, argued that the Pentagon’s refusal to hire openly gay men and women conflicts with the nondiscrimination policies of many law schools.
Last fall, 45 Yale Law School professors said they agreed. In an amicus brief filed on FAIR’s behalf as well as in a separate lawsuit, Yale amplified its opposition.. The Law School prevailed on the district court level, but the case — Burt v. Rumsfeld — is now pending before the 2nd Circuit of the U.S. Court of Appeals.
In oral arguments heard by the high court on Dec. 6, FAIR lawyers protested that the Solomon Amendment violates the First Amendment. They argued that Solomon compels undesired speech and compromises the right of law schools to associate with whichever viewpoints they choose. They argued that the law had established an unconstitutional condition for receiving federal aid. And as an afterthought, they added that the law was too vague.
At the end of the day, FAIR had made seven fundamentally separate constitutional and statutory arguments against the Solomon Amendment.
But Chief Justice John Roberts, in his first opinion concerning a constitutional question, said none of FAIR’s arguments was sound. The law professors, he wrote, had stretched the Bill of Rights, exaggerated judicial precedent and remolded the Constitution to their liking. They had attempted, in a time of war, to burden Congress’s explicitly enumerated power to raise an army and navy and to provide for the common defense.
Not even Justice Ruth Bader Ginsberg, a former chief litigator for the American Civil Liberties Union, was persuaded by FAIR’s position. Nor was Justice Stephen Breyer, a Clinton appointee known for looking to the political and moral impact of a decision.
Their ruling, after all, was unanimous.
What went wrong?
The New York Times called it a “Supreme Court Smackdown.” But the Times article’s author, Adam Liptak ’84 LAW ’88, also asserted that the FAIR position was the “all-but-unanimous” view of the law school community. He was, on closer inspection, mistaken.
Some of Yale’s most eminent constitutional law scholars refused to join the FAIR argument — among them Akhil Amar, an advocate of gay rights whose signature is nevertheless absent from the amicus brief and the Yale lawsuit.
And some professors said they think FAIR’s legal arguments might have been invented to fit their position, since FAIR was above all opposed to “don’t ask, don’t tell” rather than just the Solomon Amendment.
George Washington University law professor John Banzhaf, who speculated that many law schools, including his own, joined as “an empty gesture to those concerned with the ‘don’t ask, don’t tell’ policy,” created a Web site that lists more than 20 instances in which distinguished law professors have spoken out against the merit of FAIR’s constitutional arguments.
At Yale Law School, a historically left-leaning institution, the 45 professors who crusaded against the Solomon Amendment constitute only several more than half of the faculty, far from a unanimous consensus.
George Mason University law professor Joseph Zengerle, who wrote an amicus brief on behalf of the Pentagon along with nearly 90 other law professors and students, questioned the common sense of the FAIR premise.
“Who really thinks that employers who come onto campus speak for the law school? Anybody who looks at the record would see an enormous imbalance between the group of law professors that supported the FAIR on one hand … and the professors on the other side,” he said. “Whether the imbalance actually reflects the entire law school community, I would tend to doubt.”
Even within the group that fought against the Solomon Amendment, there is disagreement. Professor Robert Burt said Yale’s lawsuit, which the U.S. Supreme Court has refused to hear, might have appealed to liberal justices more than FAIR’s oral argument, which he said “drifted” and “had no focus.”
“The Supreme Court was not asked by FAIR to view universities in any special light or to give deference to our views as educators,” he said. “I think that was the myopia of the FAIR lawyers, and it contributed to the myopia of the justices.”
But whether all or only some members of the law school community were dealt a smackdown cannot be the only indicator of FAIR’s legal merit. The heart of the matter may lie elsewhere, far beyond the control of opponents of the Solomon Amendment in academia.
Ivory town myopia?
For days after the decision’s release, media pundits largely condemned the defeated law schools. While many of these commentators support the crusade against “don’t ask, don’t tell,” they had come to question the values and allegiances of the academic community.
Yale alumnus Flagg Youngblood wrote in a March 17 Washington Times column that he was “deeply ashamed” of his alma mater.
“That Yale would sooner embrace an ambassador from one of America’s declared and defeated enemies (former Taliban spokesperson Sayed Hashemi), and in the same breath keep ROTC and military recruiters off campus, shows where Yale’s allegiance to America falls,” he wrote. “Or should I say fails?”
Such criticism sheds light on the larger problem faced by FAIR supporters from the start: an ongoing tension between academia and patriotism, a tension that was apparent during debate over the Solomon Amendment more than a decade ago.
On the House floor, Rep. Richard Pombo, an outspoken supporter of the Solomon Amendment, said the “bottom line is an issue of fairness” — since the universities were accepting federal money, they should therefore allow recruiters on campus. But he followed up his statement with a diatribe against university elitism, according to the Congressional Record of June 14, 1995.
More than a decade later, when asked why FAIR had lost in such dramatic fashion, Banzhaf, a self-described liberal who nonetheless opposed the FAIR position, spoke to this same tension.
“The best answers [for what went wrong] that I’ve seen are liberal guilt and ivory town myopia,” he said. “The views that we tend to share we tend to assume everyone shares.”
But in her Times Square office, Aliya Haider, an attorney representing FAIR, denied that she and her colleagues were out of touch with the mainstream. She said the idea that an ivory tower exists is presumptuous. Instead, she said, she suspects that the “emotional pull” of the government’s arguments won out over her firm’s “concrete” analysis of the Constitution.
“I think people are suspicious of academia,” she said. “And somehow it got cast as these brave young men and women versus these ivory-tower law professors. Once you characterize it like that, you’ve lost.”
The structure of Roberts’ opinion seems to support either theory.
Although the First Amendment dispute was prioritized during oral arguments, the first constitutional question that Roberts addressed in his opinion was the power of Congress to raise a military. He even went a step beyond what the Pentagon was asking for by suggesting that Congress could pass a law requiring military recruiters to have access to college campuses regardless of whether or not a given school accepts federal aid.
“There is no dispute in this case that [the power to raise a military] includes the authority to require campus access for military recruiters,” he wrote.
But Haider disagreed. She said the Pentagon provided no statistics to back up its claim that access to law schools was essential for military recruitment.
Still, Zengerle said he was shocked at FAIR’s ignorance of the damage they were in danger of dealing to a vital American interest.
“What was really going on was the vindication … of ‘don’t ask, don’t tell,’ but what really was at stake here was, more importantly, the position of the armed forces and recruitment during a time of war,” he said. “There were other ways for them to challenge ‘don’t ask, don’t tell’ directly.”
And the challenges continue. In his opinion, Roberts encouraged law schools to protest the policy, an invitation that the Yale Law School dean’s office has told students to heed by speaking out against the discriminatory policy in coming days. Meanwhile, the losing battle against the Solomon Amendment hinges on the Yale Law School case for its last breath.
The end of Burt?
Although Yale can currently bar military recruiters from campus without losing federal aid, it will likely soon lose this right. While Burt and the 44 other law professors prevailed against the Pentagon in a U.S. District Court of Connecticut ruling that declared the Solomon Amendment to be in conflict with Yale Law School’s comprehensive nondiscrimination policy, experts say the decision will likely be reversed in light of the FAIR ruling.
Robert Post, a leading First Amendment scholar and Yale law professor, said he was disappointed and worried that the court had ignored the unique status of universities.
Although Burt relies heavily on this alternative argument and was strategically structured to include a factual hearing rather than a purely theoretical one like in FAIR, the Roberts decision was far-reaching in its language and hard-hitting in its unanimity.
Burt said there is still much room for all eight justices — newly appointed Justice Samuel Alito LAW ’75 did not participate in the case — to be disproved one day, citing several nearly unanimous Supreme Court rulings, such as Plessy v. Ferguson, that have since been “universally regarded as terrible moments, as really despicable decisions by justices that are morally unworthy.”
Haider said that even after working on the losing case, she is “willfully optimistic” about the future and looks to the fight as one “battle in a series of many.”
Whether Yale students will see military recruiters walking to and from the Yale Law School building and down Wall Street next year remains a question to be answered by the federal district and appeals courts in the coming months.
But in recent weeks, Yale Law School Dean Harold Koh has lashed out against the domestic eavesdropping program of President George W. Bush ’68, prominent law professors have continued to protest at least the Pentagon’s recruiting policies in editorials and lectures, and military recruiters remain barred from Yale’s campus.
With these conditions in place, tension between the ivory tower and the red, white and blue — whether real or simply contrived by pundits and politicians skeptical of academic thinking in a time of heightened national security — shows no sign of relenting.