On the Wisdom of Solomon


Pictured, from left to right, are Dan Sullivan, Susan Bernabucci, Professor John Eastman, Professor Kent Greenfield, and Matt Cooper.

This December, the U.S. Supreme Court will hear oral arguments in Rumsfeld v. FAIR, involving the constitutionality of the Solomon Amendment, which requires law schools that accept federal money, such as Harvard Law, to allow military recruiters on campus or lose all federal funding. Last week, Boston College Law School Professor Kent Greenfield and Chapman University School of Law Professor John Eastman squared off over this timely and controversial issue in a debate hosted by the Federalist Society and attended by well over 100 students.

Until recently, HLS had barred military recruiters from using the Career Services Office, because it disagreed with the military’s “don’t ask, don’t tell” policy. However, the law school recently decided to reverse course and once again allow military recruiters on campus rather than risk having Harvard University lose access to federal funding. Several HLS faculty members have submitted an amicus brief to the Supreme Court defending the law school’s right to bar employers who fail to comply with the antidiscrimination policy, but HLS is not a member of FAIR, the Forum for Academic and Institutional Rights.

Professor Greenfield, president of FAIR, has led the charge on behalf of schools to overturn the Solomon Amendment. He argues that the Solomon Amendment violates the First Amendment by compelling speech, because schools are forced to “facilitate, disseminate, and host” discriminatory messages, as if “forced to hold the microphone.” In addition, Greenfield claims the Solomon Amendment violates schools’ association rights by forcing them to allow the military in violation of their “core belief” of non-discrimination.

Professor Eastman recently wrote an amicus brief in the case with former Attorney General Edwin Meese in support of the government’s position. Eastman argues that schools are not being compelled to say anything and remain free to voice their disagreement with the military policy. Even if it were compelled speech, Eastman maintains that it is permissible as a condition on federal spending. He points out that the Supreme Court in South Dakota v. Dole upheld a condition on federal highway spending which required states to institute a 21-year-old drinking age, and argues that, like Dole, the amount of money at issue under the Solomon Amendment is not enough to be coercive and is related to the power to raise armies, which authorizes the spending in the first place.

This case is one of the most controversial and visible of the current Supreme Court term, as evidenced by last week’s Hark protest. While the debate may not have changed the minds of students who already felt strongly about either side of the issue, all attendees certainly left with a fuller appreciation of both positions.

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