The Magazine

U.S. Military: 8
Elite Law Schools: 0

How did so many professors misunderstand the law?

Mar 20, 2006, Vol. 11, No. 25 • By PETER BERKOWITZ
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

CHIEF JUSTICE JOHN ROBERTS'S UNANIMOUS opinion for the Supreme Court in Rumsfeld v. Forum for Academic and Individual Rights, upholding the constitutionality of the Solomon Amendment against challenge by a coalition of law schools and law faculties, decisively resolved the essential legal issues presented by the case. The 8-0 decision (Justice Alito did not participate) made matters crystal clear: Congress, without infringing law schools' and law professors' First Amendment rights of speech and association, may condition federal funding to universities on law schools' granting access to military recruiters equal to that provided other employers. The Solomon Amendment leaves law schools perfectly free to keep the military off campus and away from their students--if they can persuade the universities of which they are a part to decline the millions, sometimes hundreds of millions, the universities receive in federal funds.

However, Roberts's opinion does give rise to, and leaves unresolved, one nonlegal but rather large and disturbing question: How could so many law professors of such high rank and distinction be so wrong about such straightforward issues of constitutional law?

The losing party, the Forum for Academic and Individual Rights (FAIR), is an association of 36 law schools and law faculty, only 24 of which are willing to be named publicly. In addition, groups of faculty members from many of the leading law schools in the land filed separate friend of the court briefs on behalf of FAIR (alone among law faculty, members of George Mason filed a brief--in which I played no role--supporting the constitutionality of the Solomon Amendment). These included a friend of the court brief signed by 40 Harvard Law School professors--including Dean Elena Kagan in her capacity as professor of law; University Professor Laurence Tribe; and University Professor Frank Michelman. The brief was prepared under the supervision of counsel of record Walter Dellinger, professor of law at Duke University and former solicitor general of the United States in the Clinton administration.

Another friend of the court brief was signed by 42 members of the Yale Law School Faculty, including Harold Hongju Koh, dean and professor of law; former dean and Sterling Professor of Law Anthony Kronman; and Sterling Professor of Law and Political Science Bruce Ackerman. In addition, a joint friend of the court brief was submitted by Columbia University, Harvard University, New York University, the University of Chicago, the University of Pennsylvania, and Yale University. Their counsel of record was Seth Waxman, a visiting professor of law at Georgetown, and, like Dellinger, a former solicitor general in the Clinton administration.

This dazzling array of eminent law professors proved incapable--even after hiring the best Democratic party legal talent money could buy--of advancing a single legal argument persuasive enough to pick off even a single dissent from the four more progressive justices on the court--Souter, Breyer, Ginsburg, and Stevens--or to provoke even a single concurrence expressing a single demurral on a single point of law from Chief Justice Roberts's opinion.

No doubt this unanimity was in substantial measure a result of the inherent weakness of the law professors' case. It also very likely had something to do with Roberts's reputation for working well with colleagues of differing points of view, and with the commitment he gave at his Senate Judiciary Committee hearing to foster collegiality among his colleagues.

But one should not underestimate the incisiveness of Roberts's legal reasoning. The Harvard brief put forward a statutory claim: Law schools that prohibit the military from recruiting on campus complied with the Solomon Amendment provided they applied a neutral rule--no employer that discriminates against gays and lesbians is allowed to recruit on campus--to all employers alike. Roberts concluded that the law professors misread the Solomon Amendment, which focuses not on the conditions and terms of access provided by law school policy but on the result:

Under amici's reading, a military recruiter has the same "access" to campuses and students as, say, a law firm when the law firm is permitted on campus to interview students and the military is not. We do not think that the military recruiter has received equal "access" in this situation--regardless of whether the disparate treatment is attributable to the military's failure to comply with the school's nondiscrimination policy.