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Conservative commentators erupted in glee after the Supreme Court on March 6 unanimously ruled in Rumsfeld v. Forum for Academic and Institutional Rights Inc. that Congress had not violated the First Amendment rights of law schools by requiring, on pain of a university’s loss of substantial federal financial assistance, that military recruiters receive the same on-campus access to students as the most favored non-military recruiters. The decision brings to an end a rather ingenious challenge to the “don’t ask, don’t tell” policy prohibiting openly homosexual individuals from serving in the U.S. military. After several direct legal challenges to the policy failed, law school professors believed that they could pressure Congress and the military to abandon the policy by making it more difficult to recruit law students into the military. To do so, law schools adopted policies that prohibited any employer unwilling or unable to sign a pledge promising that the employer did not discriminate in hiring on the basis of sexual orientation from being able to take advantage of the law schools’ on-campus recruiting services, which included not only interview rooms located conveniently close to where the students were, but also assistance in announcing the employer’s planned visit and scheduling interviews for the employer. Congress, however, was both unwilling to end the “don’t ask, don’t tell” policy and to see military recruiters forced off-campus due to the military’s inability to sign pledges against discrimination based on sexual orientation. As a result, Congress overwhelmingly passed a law that would cause an entire university to lose what often represented a very substantial amount of federal funding unless military recruiters were allowed onto campus and treated as favorably as those employers who were able to sign anti-discrimination pledges. That law was known as the Solomon Amendment, named after its original sponsor, Rep. Gerald Solomon (R-N.Y.), who died in 2001. UNWILLING SPEECH? Faced with a choice between declaring defeat in their protest of the military’s hiring policies or fighting the Solomon Amendment in court, the law professors (perhaps unsurprisingly) chose the latter course. But instead of directly challenging the “don’t ask, don’t tell” policy, these law professors decided to mount a First Amendment challenge to the Solomon Amendment’s access requirement. According to the law professors, the Solomon Amendment unconstitutionally required law schools to engage in speech to assist military recruiting that the law schools did not want to engage in, to associate against their will with an employer unwilling to sign the anti-discrimination pledge required of all other employers, and to engage in expressive conduct (treating the military the same as other employers) that the law schools would not voluntarily agree to engage in but for the threat of losing federal funds. To be sure, the law professors’ legal arguments were of questionable validity. I count myself among those who never thought that the lawsuit challenging the Solomon Amendment on First Amendment grounds should succeed, and the U.S. District Court for New Jersey agreed, denying the plaintiff’s request for a preliminary injunction against the law. The Forum for Academic and Institutional Rights (FAIR) then appealed to the U.S. Court of Appeals for the 3rd Circuit. In the interest of full disclosure, I filed an amicus brief in the 3rd Circuit on behalf of several law-student veterans groups that supported the federal government’s position in the case. At the 3rd Circuit oral argument, it was clear that one judge on the three-judge panel clearly saw merit in FAIR’s constitutional challenge to the Solomon Amendment, a second judge appeared to view FAIR’s challenge as without merit, while the third judge said absolutely nothing. Several months later, the panel ruled 2-1 that the plaintiffs were entitled to a preliminary injunction blocking enforcement of the Solomon Amendment. Too many other 3rd Circuit judges had recused themselves from the case to enable rehearing en banc to occur, so the federal government’s only recourse from the 3rd Circuit’s adverse ruling was to seek review in the Supreme Court. FAIR opposed the federal government’s petition for writ of certiorari, arguing that no circuit split existed on the Solomon Amendment’s constitutionality and that the 3rd Circuit’s decision directing the entry of a preliminary injunction envisioned further evidentiary proceedings on remand. Supreme Court review, if it were to happen at all, should await the conclusion of the entire case, FAIR argued. But FAIR’s argument was to no avail, as the Supreme Court agreed to review the 3rd Circuit’s ruling on the merits. At that point, there was no turning back for FAIR. And following a Supreme Court oral argument during which FAIR’s position appeared to have little to no support from the bench, it appeared likely that FAIR would lose convincingly and perhaps by a unanimous margin. LIBERAL, BUT NOT UNQUALIFIED Notwithstanding the 8-0 trouncing that FAIR’s arguments received at the hands of the Supreme Court, it strikes me as a bit unfair to argue that the outcome calls into question the professional qualifications of those liberal law professors who devised and backed the Solomon Amendment litigation. To begin with, before the Supreme Court ruled, FAIR’s arguments had achieved victory in both the 3rd Circuit and the U.S. District Court for Connecticut. FAIR deserves credit for choosing the 3rd Circuit as the forum in which to litigate the initial challenge to the Solomon Amendment, based on that federal appellate court’s reputation as moderate to liberal on First Amendment issues. Second, notwithstanding its ultimate loss in the Supreme Court, FAIR has caused a great deal of additional attention to be focused on the existence of the “don’t ask, don’t tell” policy, which may cause many people who had never considered the policy to question its necessity. In fact, even in defeat FAIR may help undermine the policy, as law students who do not believe the policy is justified will now have easier access to military recruiters, allowing those students to join the military more readily and seek from within to overturn support for the policy. FAIR’s most significant achievement in the litigation resulted from a concession by the solicitor general at oral argument, in response to questioning from Justices Ruth Bader Ginsburg, Anthony Kennedy, and Antonin Scalia, which recognized that vocal and enthusiastic protests of on-campus military recruiters can occur without violating the Solomon Amendment. The Supreme Court’s opinion mentions that concession, giving FAIR a small victory in the midst of an otherwise total defeat. For FAIR and its supporters, the Solomon Amendment case was being litigated as a matter of principle, and often litigating for a principle, instead of being able to compromise, results in an unmitigated loss. And sometimes losing 8-0 is preferable to losing by just a single vote. Yet to say that the law professors supporting FAIR are unqualified to instruct the next generation of lawyers or determine litigation strategy overlooks what FAIR actually accomplished earlier in the litigation and in the court of public opinion. FAIR may have lost the case, but the battle over the principle at stake continues.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. His Web log can be accessed at appellateblog.com. This article first appeared on law.com, an ALM Web site.

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