Solomon Amendment, Law Students Protest Military Recruiters

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Despite Debacle, Solomon Amendment,  Law Students Protest Military Recruiters; Apparently No Lessons Learned; GWU‘s Schizophrenic Decision

WASHINGTON, D.C.  (February 14, 2019) –  Despite a recent debacle in which learned law professors were humbled and insulted by a unanimous Supreme Court, law students at major law schools are nevertheless protesting that their schools are permitting the military to recruit because it’s once again discriminating, says public interest law professor John Banzhaf, who also notes the related schizophrenic decision at his own law school.

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Last month a few students at Harvard Law protested permitting military presence at a job fair for law students because of "the government's failure to validate the existence of transgender people."

Now some students at BU School of Law are protesting a decision to allow JAG to participate in a networking event, and the schools' adherence to the Solomon Amendment.

The Solomon Amendment - a part of a federal statute which conditioned federal funding on permitting military recruiters access to campuses  - was passed when law schools and universities tried to keep military recruiters off campus because the armed forces discriminated, at that time, against homosexuals.

Law schools objected, arguing that they had some kind of constitutional right to ban those with whom they disagreed, even if the military was simply carrying out lawful federal policy.

Not surprisingly, the U.S. Supreme Court not only unanimously rejected that argument, but wondered how learned professors of constitutional law could even make it.

Virtually all major newspapers and columnists supported the Supreme Court's unanimous decision upholding the access of military recruiters to campus, and many - even those opposing the military's policies on gays, and some of the Nation's most liberal - went out of their way to sharply rebuke the law schools and law professors who brought the case; one which has backfired and opened the doors to campus access even wider.

As Harvard's own newspaper put it, the unanimous opinion "singled out the Harvard professors' brief and later wrote that the Harvard faculty members' interpretation of the Solomon Amendment is 'clearly not what Congress had in mind.'  . . .  But the Harvard professors' tactic did not sway their former student Roberts-nor did it convince any of the five other justices who attended Harvard Law."

The Supreme Court's ruling seemingly went out of it way to embarrass the many law professors who supported the law suit, and their constitutional arguments.

It began by referring to "certain law professors participating as amici" (40 Harvard Law School professors) and "56 Columbia Law School Faculty Members as Amici Curiae."

It noted that those scholars had offered an interpretation of the statute that the court ruled "would render it a largely meaningless exercise." It said the meaning the professors suggested was contrary to the language of the statute, and would have resulted in a "legislative change [that] had no effect."

Ironically, the brief that the Harvard lawyers drafted was not only rejected but ridiculed by the six justices who had gone to law school there, as well as by the other two justices who participated.

USA Today said the law professors "don't have constitutional leg to stand on."

The New York Times called the Court's decision a "smackdown," and "a shutout, a rout, a humiliation."  The Los Angeles Times asked "how could the nation's top law schools, overflowing with brilliant legal scholars, have agreed to make such an absurd argument?"

The Chicago Tribune said that "the Supreme Court suggested Monday that the complainants spend less time teaching and more time studying. They flunked a test in a way that would embarrass a first-year student."

The Detroit News put it this way: "The U.S. Supreme Court, in a unanimous 8-0 decision, told the faculties of 36 prominent law schools on Monday that they didn't seem to know much about the law. . . Now it's nice to see the law professors eat some crow at the hands of the Supreme Court."

As a further irony, the ruling was not only a stern rebuke, but also a major loss.  Indeed, the Washington Post, even before the Supreme Court ruled, concluded that "this litigation is something of a misfire."  The Post war correct since the case backfired - the ruling provides a constitutional green light for the government to intrude even more upon the activities of higher-education institutions.

The justices ruled broadly that even schools that choose to keep recruiters off the campus by giving up federal support could be required to admit them, and that the government could, without violating the Constitution, perhaps even take other steps that colleges may find even more objectionable.

Perhaps the court's most crucial conclusion was that "the First Amendment would not prevent Congress from directly imposing the Solomon amendment's access requirement" on a university, even if the institution were willing to give up federal support or did not receive any federal support.

Under that legal principle, Congress may also be able to impose on colleges other requirements that they may deem even more disagreeable - mandating, for example, that they permit military-recruiting booths or firearms on their campuses, provide equal access for goods from companies that students want the institution to boycott, or make morning-after pills or other abortion or contraceptive aids available to students even if faculty members oppose such actions, suggests Banzhaf.

But all of this did not stop BU's law students from protesting the law school's adherence to the Solomon Amendment, a demand likely to also spread to other law schools.

As a further irony, once the Supreme Court's decision made it virtually impossible to ban military recruiters, the George Washington University adopted a requirement that materials related to any campus recruitment by the military contain a statement about how strongly the Law School and the University oppose discrimination based upon sexual orientation.

Then, when the military ceased discrimination based upon sexual orientation, it was suggested that this labeling requirement be ended.

However, when it was pointed that the military still discriminated on the basis of gender - because females were barred from combat roles which were important if not essential in achieving certain ranks for career military professionals - the law school decided that such a notice requirement, while it may be necessary for discrimination based upon sexual orientation, wasn't even appropriate for discrimination based upon gender, even though far more people were potentially affected, notes Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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