Amicus Curiae Brief — Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

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No. 04-1152 LOPE OF THE CLERK J

IN THE

Supreme Court of the Anited States

DONALD H. RUMSFELD, SECRETARY OF DEFENSE, ET AL.,

Petitioners,

V.

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS,

INC., ETAL,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF AMICUS CURIAE

THE AMERICAN LEGION

IN SUPPORT OF PETITIONERS

PHILIP B. ONDERDONK, JR. ROBERT P. PARKER

National Judge Advocate Counsel of Record

THE AMERICAN LEGION ANDREW J. PUGLIA LEVY

P.O. Box 1055 PAUL, WEISS, RIFKIND,

Indianapolis, IN 46206 WHARTON & GARRISON LLP

1615 L Street, N.W.

Washington, D.C. 20036

(202) 223-7300

July 15, 2005 Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS

THE COURT SHOULD DEFER TO CONGRESS’

UNIQUE CONSTITUTIONAL AUTHORITY

OVER MILITARY AFFAIRS AND NATIONAL

THE GOVERNMENT HAS A COMPELLING

INTEREST IN ENSURING THAT THE

MILITARY CAN RECRUIT HIGHLY

EDUCATED, CIVILIAN-TRAINED OFFICERS

FROM DIVERSE BACKGROUNDS

A. Civilian-tran.ed Officers are Essential

for a Well-rounded Military that Reflects

and Protects the Country’s Values

Lack of On-campus Military Recruiting

Would Significantly Hinder the Military’s

Ability to Recruit Sufficient Officers—Both

C.

THE SOLOMON AMENDMENT IS

NARROWLY TAILORED

A. On-campus Recruiting is the Military’s

Most Effective Tool to Create a Strong,

B. The Alternatives Cited by the Third

Circuit are Inadequate..............ccccseceeeeeees 25

IV. THE THIRD CIRCUIT’S REASONING

WOULD PERMIT ANY INSTITUTION

TO DENY THEIR STUDENTS ACCESS TO

MILITARY RECRUITERS ON THEIR

CAMPUSES FOR ANY REASON .........666.. cesses 27

COBSULATIIIIN coceccosesocesesscsnsesontoneadeimennseasneieimnasianain 30

(ii)

TABLE OF AUTHORITIES

Page

CASES

Brown v. Glines, 444 U.S. 348 (1980)... ..... 2... ... 10

Burns v. Wilson, 346 U.S. 137 (1953)... ... 2... 6... 19

Dynes v. Hoover, 61 U.S. 65 (1857)... .. 2... oe ee ee 19

Forum for Academic and Institutional Rights

v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004) . . . passim

Gilligan v. Morgan, 413 U.S. 1 (1973)... .... 2.2.2... 5

Goldman v. Weinberger, 475 U.S. 503 (1986) ........ 7,9

Greer v. Spock, 424 U.S. 828 (1976)... ..... 2.6.66. 10

Grutter v. Bollinger, 539 U.S. 306 (2004) ......... 15, 16

Haig v. Agee, 453 U.S. 280 (1981)... ... 2.2... eee. 11

Hamilton v. Regents of the University

of California, 293 U.S. 245 (1934) ........... 17 -

Nomi v. The Regents for the University

of Minnesota, 5 F.3d 332 (8th Cir. 1993)... . 17, 18

Orloff v. Willoughby, 345 U.S. 83 (1953) ......... passim

Parker v. Levy, 417 U.S. 733 (1974) ..... 2.6.6... passim

Regan v. Taxation With Representation of

Washington, 461 U.S. 540 (1983)... ......... 24

Rostker v. Goldberg, 453 U.S. 57 (1981). ......... passim

Schlesinger v. Ballard, 419 U.S. 498 (1975) ........... 5

Soloario v. United States, 483 U.S. 435 (1987) ....... 7,9

United States v. Grimley, 137 U.S. 147 (1890) ........ 19

United States v. O’Brien, 391 U.S. 367 (1968) ......... 5

(iii)

CONSTITUTIONAL PROVISIONS

U.S. Cons. art. 1, § 8, ch 2.......... 00... cece eee 5

U.S. ConsT. art. I, § 8, cl. 11-14, 18.............005. 5

STATUTES

141 Cong. Rec. E13-01 (Jan. 4, 995)... 2... 0.0 eee. 8

142 Cong. Rec. H5715 (May 30, 1996)............... 8

141 Cong. Rec. H5963 (June 14, 1995).............. 12

142 Cong. Rec. H7335 (July 11, 1996)............... 8

National Aeronautics and Space Administration

Authorization Act of 1969, Pub. L. No. 90-373,

§ 1h), 82 Stat. 280, 281-82 (1968). .......... 10

Department of Defense Authorization Act of 1971,

Pub. L. No. 91-441, § 510, 84 Stat. 905 (1970) . . 10

Department of Defense Authorization Act of 1973,

Pub. L. No. 92-436, § 606, 86 Stat. 734, 740

PEs cocacdcsnsdecceconcecbeusesescuwes 10

National Defense Authorization Act for Fiscal Year

1995, Pub. L. No. 103-337, § 558, 108 Stat.

Department of Defense Appropriations Act of 2000,

Pub. L. No. 106-79, § 8120, 113 Stat. 1260

Gens nocccnsconcsiuccduatenunteaseunéet 8

Ronald W. Reagan National Defense Authorization Act

for Fiscal Year 2005, Pub. L. No. 108-375,

§ 552, 118 Stat. 1811 (2004). ..............6.. 8

a Pee 27

a 2

10 U.S.C. § 983(6)(1) (2004)... 2. ee eee, 7,27

(iv)

36 U.S.C. $§ 21701-08 (2005)... ..... 2... ee. passim

MISCELLANEOUS

Adam Liptak, Colleges Can Bar Army Recruiters,

N.Y. TIMES, Nov. 30, 2004.................. 23

Government's Attorneys and Abu Ghraib,

Anne Gearan, Detainees’ Lawyers Challenge Supreme

Court, ASSOC. PRESS, Jan. 14, 2004........... 21

Beth Asch & James R. Hosek, Looking to the Future:

What Does Transformation Mean for

Military Manpower and Personnel Policy?

Gas cevccetecchaosecedbens 14

Beth Potier, ROTC Commissioning Ceremony Stresses

Importance of Scholars and Soldiers, HARVARD

UNIV. GAZETTE, June 8, 2005 ................ 12

Bylaws of the Association of American Law Schools,

OR, Fein cn esctdvocedddestestsnces 16

Brief for Judge Advocates Association as

Bs aw bans c0d0nkessonstnokennt 18

Captain Eugene Y. Kim, The Judge Advocate Recruiting

Office: The Gateway to Service, 2004-JUN

Army Law. 33 (2004)...........00eeeeeeee 26

Caroline Hendrie, High Court Orders New Review of

Michigan Title IX Case, EDUC. WK. 28,

2005 WLNR 7939974, May 11, 2005......... 28

Colonel Charles J. Dunlap, Jr., Welcome to the Junta:

The Erosion of Civilian Control of the U.S.

Military, 29 WAKE FOREST L. REV. 341

Gea ncccccovascesubasuvttetiecetin 12, 23

Dean Paton, Rift Over Recruiting at Public High Schools,

CHRISTIAN SCI MONITOR, May 18, 2005....... 29

Declaration of Major General Jack L. Rives,

U.S. Air Force, Forum for Academic and

Institutional Rights v. Rumsfeld, 390 F.3d 219

(3d Cir. 2004) (03-4433). ......... .... passim

Declaration of Rear Admiral Jeffrey L. Fowler,

U. S. Navy, Forum for Academic and

Institutional Rights v. Rumsfeld, 390 F.3d

219 (3d Cir. 2004) (03-4433) ............ passim

Declaration of Brigadier Gen. Walter E. Gaskin,

U.S. Marines, Forum for Academic and

Institutional Rights v. Rumsfeld, 390 F.3d

219 (3d Cir. 2004) (03-4433)............ passim

Declaration of Dr. David S. C. Chu, Undersecretary

of Defense for Personnel and Readiness,

Forum for Academic and Institutional Rights v.

Rumsfeld, 390 F.3d 219 (3d Cir. 2004)

Pvt ccétscesasededadeuneenbeduaks 26

Declaration of Major General Thomas J. Romig,

U.S. Army, Forum for Academic and

Institutional Rights v. Rumsfeld, 390 F.3d

219 (3d Cir. 2004) (03-4433) ............. passim

American Association of Law Schools Executive

Director Carl Monk, Memorandum to Deans

of Member Schools (January 24, 2000)........ 17

Final Report of the ROTC Task Force, Columbia

University, (May 6, 2005)............... passim

(vi)

Hearing Before Senate Comm. on Armed Services

To Receive Testimony on the Status of the

U.S. Army and U.S. Marine Corps in Fighting

the Global War on Terrorism,

ns sc cundusieunseses 15

Hearing Before the Subcomm. on Military Readiness

of the House Armed Services Comm..,

Sc cicinadtsesbwaceedaées 14

James Gordon Meek, At War with Gitmo Grilling, N.Y.

DAILY NEWS, Feb. 13, 2005................. 21

Major General Jack Rives, Expeditionary Law:

Remarks on How to Succeed in the

Deployed Environment, 51 A.F.L. REV.

Pe itcadécabévasteceunantbdeewins ss 20

Major Gen. Michael D. Rochelle, Remarks at Army

Recruiting Commander Briefing

MILITARY SERVICE (Harvard Univ

PRED o v.cbdcatudacaascaquedeendes passim

Pamela Hess, Military Lawyers Criticize Tribunal,

UNITED PRESS INT’L, Jan. 15, 2004............ 21

Robert Burns, Army Headed to Recruiting Shortfall,

ASSOC. PRESS, June 8, 2005.................. 16

Ryan Foley, UW-Stout Chancellor Reverses Decision

on ROTC, Fearing Loss of Federal Funds,

DULUTH NEWS TRIB., June 1, 2005........... 27

THE FEDERALIST Nos. 23, 26 (Alexander Hamilton)

(Penguin Classics, ed. 1987)..............20.00- 6

(vii)

THOMAS P.M. BARNETT, THE PENTAGON’S NEW MAP:

WAR AND PEACE IN THE TWENTY-FIRST CENTURY

Tom Regan, Military Lawyers Advised Pentagon Two

Years Ago to Protect Prisoners, CHRISTIAN SCI.

MONITOR, May 17, 2004................45. 21

T. Trent Gegax & Evan Thomas, The Family Business,

Newsweek (June 20, 2005).............44.4. 13

RULES

Supreme Court Rule 37.3(a).... 0.2.6.0 602 ceceeeeees l

PD Gee ED ID oc ov cccccccccsccccevecéoes |

(viii)

l

BRIEF AMICUS CURIAE OF

THE AMERICAN LEGION

Pursuant to Rule 47.3, amicus curiae The American

Legion respectfully submits this brief im support of

petitioners and asks that the judgment below be reversed.’

INTEREST OF AMICUS

The American Legion (“the Legion”) is the largest

veterans organization in the United States, comprising more

than 2,600,000 current and former members of our Armed

Forces. Congress chartered the Legion as a corporation in

1919. See Act of September 16, 1919 ch 59, 41 Stat. 284

(currently codified at 36 U.S.C. §§ 21701-08 (2005)). The

Legion’s statutory purposes include upholding and

defending the Constitution of the United States and

supporting its members’ service to their country. See 36

U.S.C. § 21702. Towards these ends, the Legion long has

worked to foster patriotism, character and good

citizenship—as well as the military ideal of the citizen-

soldier.

The Legion’s commitment to collective responsibility

and a military composed, in part, of citizen-soldiers is

reflected in the Preamble to its Constitution: The Legion

seeks to “inculcate a sense of individual obligation to the

community, state and nation; [and to] combat the autocracy

of both the classes and the masses.” Preamble, The

American Legion Const.

' Pursuant to Supreme Court Rule 37.3(a), amicus has received

consent to file this brief from counsel for petitioners and

The letters evidencing such consent have been filed with the Clerk of

Court. No party or counsel for a party to this case authored this brief in

whole or in part, and no person or entity other than amicus curiae, its

members, or its counsel has made a monetary contribution to the

preparation or submission of this brief.

2

There is no test for Legion membership except for

honorable military service in the United States Armed

Forces during a period of hostilities. See 36 U.S.C. §

21703.2 Nor does the Legion poll its members as to their

personal beliefs. In all likelihood, the Legion’s more than

2.6 million members have widely divergent views on

government policies, including the so-called “Don’t Ask,

Don’t Tell” law regarding homosexuals in the military. See

10 U.S.C. § 654 (1993). Indeed, the Legion has at least one

Post comprising almost exclusively homosexual veterans—

the Alexander Hamilton Post in San Francisco, California.

However, this case is not about “Don’t Ask, Don’t Tell,”

or any other law or military policy. At issue is the

constitutionality of the Solomon Amendment. That is, does

Congress have the discretion to withhold certain federal

funds (i.e., taxpayer dollars) from those istitutions of

higher learning that, for any reason, choose to interfere with

the military’s ability to carry out the government’s most

crucial constitutional duty—namely, to provide for the

national defense of the United States.

SUMMARY OF ARGUMENT

Recruiting is the lifeblood of our modern, all-volunteer

military. For the more than 30 years since Congress

abolished the draft, the military has relied on recruitment

directly from our nation’s colleges and universities to

sustain the strength and excellence of our Armed Forces

across various disciplines. Along with the military

academies, colleges and universities—through the Reserve

Officers Training Corps (“ROTC”) and on-campus

? An individual also is eligible for membership if the individual has

served honorably in the Armed Forces of “a government associated with

the United States during a period [of hostilities] and was a citizen of the

United States when the individual entered that service.” See 36 U.S.C. §

21703(1)(B).

3

recruiting from graduate and undergraduate programs—are

the primary source of active-duty and reserve officers.

The Solomon Amendment was enacted in furtherance of

Congress’ compelling interest in promoting effective

military recruiting as a fundamental component of our

national security. Denying military recruiters equal access

to the men and women of our istitutions of higher learning

would impede the military’s ability to ensure an officer

corps, including judge advocates, not only of sufficient size,

but of quality and diversity as well. Indeed, the officers

recruited from colleges and universities serve an important

purpose beyond mere manpower: By virtue of having been

educated in civilian institutions, these officers bring a

perspective and values to military service that complement,

and counterbalance, the worldview brought to the service by

professional officers graduated from the academies. This

need is especially acute in the Judge Advocate General’s

Corps (the “JAG Corps”), which implements a system of

military justice in accordance with the Uniform Code of

Military Justice and advises military and civilian leaders on

a wide range of legal matters, including the laws of

engagement, international law, and, recently, the handling of

detainees in the War on Terror.

The Third Circuit’s conclusion that Congress could serve

this compelling imterest through more narrowly tailored

means, such as television and radio advertisements, see

Forum for Academic and Institutional Rights (F.A.LR.) v.

Rumsfeld, 390 F.3d 219, 234-35 (3d Cir. 2004), is

unrealistic; the fact that the private sector relies so heavily

on On-Campus recruitment demonstrates the wisdom of

Congress’ conclusion that there simply are no adequate

substitutes for individualized, face-to-face interactions

between the men and women of the military and interested

students. At the same time, institutions and the students

who attend them may exercise their First Amendment rights

4

by parading, picketing and protesting against any

government policy they find objectionable.

Importantly, the Third Circuit’s reasoning, if adopted,

would impose significant barriers to military recruitment

extending far beyond law school campuses and the specific

objection to alleged discrimination involved im this case.

But for the Solomon Amendment, medical, nursing and

engineering schools, for example, as well as undergraduate

liberal arts imstitutions, would be free to halt military

recruiters at their gates, leaving the military without any

recourse. High school recruiting would be in danger, too, as

the law governing military access to high schools is

substantially similar to the Solomon Amendment. And

under the regime urged by respondents and endorsed by the

Third Circuit, schools would be able to prohibit military

recruiting based on nothing more than an objection to a

particular law or military policy, or even a mere whim, and

yet continue to receive taxpayer funding. Merely by

providing equal access to military recruiters, however,

educational mstitutions can avoid the Solomon

Amendment’s consequences and freely object to that with

which they disagree.

The Solomon Amendment thus is an appropriate exercise

of the Constitutional powers granted Congress with respect

to the military, and deserves the deference this Court

traditionally affords to Congressional judgments in matters

of military affairs and national security. To conclude

otherwise would subjugate the military’s ability to function

effectively—and thus to provide for the national security of

the United States—to the caprice of our country’s colleges

and universities.

ARGUMENT

I. THE COURT SHOULD DEFER TO CONGRESS’

UNIQUE CONSTITUTIONAL AUTHORITY

OVER MILITARY AFFAIRS AND NATIONAL

SECURITY.

Article 1 of the United States Constitution grants

Congress broad powers over military affairs and national

security. The Constitution bestows on Congress the “Power

To . . . provide for the common Defense and general

Welfare of the United States.” U.S. CONST. art. I, § 8, cl. 1.

Congress also is authorized “{t]o declare War, grant letters

of Marque and Reprisal, and make Rules concerning

Captures on Land and Water,” id. cl. 11; “{tJo raise and

support Armies,” id. cl 12; “{t]o provide and maintain a

Navy,” id. cl. 13; “{t}o make Rules for the Government and

Regulation of land and naval Forces,” id. cl 14; and “{t]o

make all Laws which shall be necessary and proper for

carrying into Execution the foregomg Powers,” id. cl. 18.

This Court has acknowledged the breadth of Congress’

constitutional authority in these areas. See, e.g., Rostker v.

Goldberg, 453 U.S. 57, 65 (1981) (“This Court has

consistently recognized Congress’ ‘broad constitutional

power’ to raise and regulate armies and navies.”) (citing

Schlesinger v. Ballard, 419 U.S. 498, 510 (1975)); (“The

constitutional power of Congress to raise and support armies

and to make all laws necessary and proper to that end is

broad and sweeping.”’) (citing United States v. O’Brien, 391

U.S. 367, 377 (1968)). Moreover, the Court has explained

that it must tread carefully on matters involving the military

and national security, both because the judiciary is insulated

from political review, see Gilligan v. Morgan, 413 U.S. 1,

10 (1973) (“It would be difficult to think of a clearer

example of the type of governmental action that was

6

intended by the Constitution to be left to the political

branches directly responsible—as the judicial branch is

not—to the electoral process.”), and because it lacks the

necessary expertise, see id. (“[I]t is difficult to conceive of

an area of governmental activity in which the courts have

less competence. The complex, subtle, and professional

decisions as to the composition, training, equipping, and

control of a military force are essentially professional

military judgments, subject always to civilian control of the

Legislative and Executive Branches.”) (quoting Orloff v.

Willoughby, 345 U.S. 83, 93-94 (1953)) (emphasis in

original).*

> As Alexander Hamilton explained in support of broad legislative

authority over military affairs:

The circumstances that endanger the safety of nations

are infinite; and for this reason no constitutional

shackles can wisely be imposed on the power to which

the care of it is committed. This power ought to be co-

extensive with all the possible combinations of such

circumstances; and ought to be under direction of the

same councils which are appointed to preside over the

common defense.

This is one of those truths which, to a correct and

unprejudiced mind, carries its own evidence along

with it; and may be obscured, but cannot be made

plainer by argument or reasoning. It rests upon

axioms as simple as they are universal. The Means

ought to be proportionate to the End; the persons from

whose agency the attainment of any End is expected,

Ought to possess the Means by which it is to be

attained.

THE FEDERALIST No. 23, 146-51 (Alexander Hamilton) (Penguin

Classics, ed. 1987) (discussing art. I, § 8, cl. 12). Hamilton also

observed that: “The idea of restraining the Legislative authority, in the

means of providing for the national defense, is one of those refinements,

which owe their origin to a zeal for liberty more ardent than

enlightened.” Jd., No. 26, 164-71.

7

Recognizing Congress’ constitutional mandate and the

shortcomings of extensive judicial involvement, the Court

consistently has deferred to Congress’ judgments regarding

military affairs. See Soloario v. United States, 483 U.S.

435, 447 (1987) (stating that “judicial deference . . . is at its

apogee” when Congress’ authority to govern military affairs

is challenged) (quoting Rostker, 453 U.S. at 70); Orloff, 345

U.S. at 93-94 (“Orderly government requires that the

judiciary be as scrupulous not to interfere with legitimate

Army matters as the Army must be scrupulous not to

intervene in judicial matters.”); see also Goldman v.

Weinberger, 475 U.S. 503, 508 (1986) (stating that the

courts “must give great deference to the professional

judgment of military authorities concerning the relative

importance of a particularly military interest”). This Court,

of course, remains the final arbiter of constitutional

questions; however, “the tests and limitations to be applied

may differ because of the military context.” Rostker, 453

U.S. at 67 |

The law at issue in this case represents the collective

judgment of Congress on the issues of military personnel

and national security, matters uniquely within Congress’

constitutional purview. The Solomon Amendment provides

that the funds of certain federal agencies may be withheld

from imstitutions of higher education that deny military

recruiters access to their campuses and students equal to that

which they provide other employers. See 10 U.S.C.

983(b)(1).* Representative Solomon explained the rationale

behind the law during a floor debate, stating that:

* The law does not allow the withholding of “any Federal grant of

funds to an institution of higher education . . . available solely for

student financial assistance or related administrative costs.” Department

of Defense Appropriations Act of 2000, Pub. L. No. 106-79, § 8120, 113

Stat. 1212 (1999).

8

[R]ecruiting is the key to our all-volunteer

military forces, which have been such a

spectacular success. Recruiters have been

able to enlist such promising volunteers for

our Armed Forces by going into high schools

and colleges and informing young people of

the increasing opportunities that a military

tour or career can provide. That is why we

need this amendment.

142 Cong. Rec. H7335 (daily ed. July 11, 1996) (statement

of Rep. Solomon); see also 141 Cong. Rec. E13-01 (daily

ed. Jan. 4, 1995) (statement of Rep. Solomon) (“Barring

military recruiters is an intrusion on Federal prerogatives . . .

and an impediment to sound national security policy.””); 142

Cong. Rec. H5715 (daily ed. May 30, 1996) (statement of

Rep. Goodlatte) (“Campus recruiting is a vitally important

component of the military’s effort to attract our Nation’s

Earlier versions of the Solomon Amendment did not have a

reference to “equal access.” See National Defense Authorization Act for

Fiscal Year 1995, Pub. L. No. 103-337, § 558, 108 Stat. 2663 (1994)

(denying federal funds to institutions of higher learning that “has a

policy of denying, or which effectively prevents, the Secretary of

Defense from obtaining for military recruiting purposes . . . entry to

campuses or access to students on campuses.”). However, Congress

determined that equal access was an important and necessary component

of recruitment and amended the Solomon Amendment in 2004. See

Ronald W. Reagan National Defense Authorization Act for Fiscal Year

2005, Pub. L. No. 108-375, § 552, 118 Stat. 1811 (2004). As currently

amended, the Solomon Amendment does not mandate access, or demand

a specified level of access; rather, the law conditions federal funds on

equal access to an “institution of higher education” or a “subelement” of

such an institution, if the institution or subelement “has a policy or

practice” that “either prohibits, or in effect prevents” military recruiters

from gaining access to campuses or students “in a manner that is at least

equal in quality and scope to the access to campuses and to students that

is provided to any other employer.” 10 U.S.C. § 983(b)(1).

9

best and brightest young people,” and institutions that

exclude military recruiters “interfere with the Federal

Government’s constitutionally mandated function of raising

a military’’).

Congress’ judgment in this case is entitled to no less

deference because it pertains to recruitment. In Rostker v.

Goldberg, a class of males argued that the Military Selective

Service Act (“MSSA”) violated the Fifth Amendment’s due

process clause by authorizing the President to require the

registration of males but not females. See 453 U.S. at 63 &

n.4. In upholding the law, the Court rejected the notion that

a lesser amount of deference was due Congress’ judgment in

enacting the MSSA because the law was not concerned with

day-to-day military operations. Jd. at 68. It also rejected the

suggestion that the MSSA “involves civilians, not the

military,” and that “the impact of registration on the military

is only indirect and attenuated.” Jd. In a statement equally

applicable to on-campus recruiting, the Court explained that,

“these efforts to divorce registration from the military and

national defense context, with all the deference called for in

that context, [are] singularly unpersuasive.” Jd. (citing and

quoting O’Brien, 391 U.S. 367). Moreover, “{rjegistration

is not an end in itself in the civilian world but rather the first

step in the induction process into the military one.” Id. The

same is true of on-campus recruiting. Like registration, it is

a critical early step in the induction of men and women into

our modern, all-volunteer military. In light of this fact, “{i]t

would be blinking reality to say that [the Court’s] precedents

requiring deference to Congress in military affairs are not

implicated by the present case.” Id. at 68-69.

Nor does the Court necessarily view the presence of an

asserted competing constitutional imterest as a bar to

Congressional action in the military sphere. See, ¢.g.,

Goldman, 475 U.S. 504 (upholding uniform regulations to

freedom of religion challenge); Rostker, 453 U.S. 57

10

(upholding conscription law that discriminated on the basis

of sex); Brown v. Glines, 444 U.S. 348 (1980) (upholding

regulations that imposed prior restraint on right to petition of

military personnel); Greer v. Spock, 424 U.S. 828 (1976)

(upholding law banning political speeches by civilians on

military base); Parker v. Levy, 417 U.S. 733 (1974)

(upholding provisions of Military Code of Criminal Justice

that infringed on freedom of speech).

For practical and institutional reasons, the Court has

turned a skeptical eye on challenges to laws that affect

military affairs, including recruitment, even when other

constitutional principles are invoked. A change of course in

this case would be especially imappropriate because

Congress is not directly regulating or infringing on law

schools’ First Amendment rights or academic freedom, but

merely placing conditions on the conduct required to receive

certain federal funds. Students and facilities remain free to

protest recruiters or to take any other ameliorative steps to

express their disagreement with a given law or military

policy. As Judge Aldisert stated in his dissent from the

Third Circuit’s opinion, the cases involving civilian affairs

relied on by the majority are simply not analogous to this

case where “an act of Congress was not only authorized by

various Clauses in Articles I and II, but commanded by

them.” F.A.I.R., 390 F.3d at 250 (Aldisert, J., dissenting). °

* Moreover, although the Solomon Amendment has received

significant recent attention, for almost forty years Congress has

conditioned certain federal funds to institutions of higher education

allowing military recruiters on their campuses. See, e.g., Department of

Defense Authorization Act of 1973, Pub. L. No. 92-436, § 606, 86 Stat.

734, 740 (1972) (restricting distribution of Department of Defense funds

to institutions of higher education that bar military recruiters from their

campuses), Department of Defense Authorization Act of 1971, Pub. L.

No. 91-441, § 510, 84 Stat. 905 (1970) (same); National Aeronautics

and Space Administration Authorization Act of 1969, Pub. L. No. 90-

11

Il. THE GOVERNMENT HAS A COMPELLING

INTEREST IN ENSURING THAT THE

MILITARY CAN RECRUIT HIGHLY

EDUCATED, CIVILIAN-TRAINED OFFICERS

FROM DIVERSE BACKGROUNDS.

This Court has stated that “i]t is obvious and unarguable

that no governmental interest is more compelling than the

security of the Nation.” Haig v. Agee, 453 U.S. 280, 307

(1981) (imternal quotations omitted). The Solomon

The military’s ability to recruit highly qualified officers,

including judge advocates, from diverse backgrounds is

inextricably bound with its ability to provide a strong,

competent military, able to protect the national security of

the United States. As the Court has recognized, “a military

officer holds a particular position of responsibility and

command in the Armed Forces.” Parker, 417 U.S. at 744.

“The President’s commission . . . recites that ‘reposing

special trust and confidence in the patriotism, valor, fidelity

and abilities’ of the appointee[,] he is named to the specific

rank during the pleasure of the President.” Jd. (quoting

Orloff, 345 U.S. at 91). Effective officer recruiting depends

on equal access to the men and women of our colleges and

universities. See Decl. of Major Gen. Thomas J. Romig,

U.S. Army ¥ 21, F.A.LR. (03-4433) (hereinafter “Decl. of

U.S. Army”).

373, § 1h), 82 Stat. 280, 281-82 (1968) (restricting distribution of

NASA funds).

12

A. Civilian-trained Officers are Essential for a Well-

rounded Military that Reflects and Protects the

Country’s Values.

Although this case arises in the context of JAG

recruiting, the Solomon Amendment is critical to the officer

corps generally: The law supports the ideal of a military of

shared duty, reflective of our core values as a Nation and

with the educational backgrounds necessary to address our

modern national security challenges. These principles are

consistent with the military's commitment to an officer

corps that consists of both professional officers and those

educated by our civilian mstitutions.

Indeed, the “citizen-soldiers” produced by our colleges

and umiversities are necessary “to counterbalance .. . the

professional officers coming out of the academies . . . [and]

bring to military service a wider and more rounded

background.” MICHAEL S. NEIBERG, MAKING CITIZEN

SOLDIERS: ROTC AND THE IDEOLOGY OF AMERICAN

MILITARY SERVICE 2-3 (Harvard Univ. Press 2000); see Col.

Charles J. Dunlap, Jr. Welcome to the Junta: The Erosion of

Civilian Control of the U.S. Military, 29 WAKE FOREST L.

REV. 341, 390 (1994) (recommending that to “broaden

the[ir] outlook,” military academy cadets and mid-level

officers should spend at least one year at leading university);

Beth Potier, ROTC Commissioning Ceremony Stresses

Importance of Scholars and Soldiers, HARVARD UNIV.

GAZETTE, June 8, 2005 (“The need for having a viable,

national-level citizen-soldier commissioning program like

ROTC is abundantly clear. . . . [T]he cadets and ensigns of

ROTC [are] critical decision-makers who reflect the broad

spectrum of America’s colleges and umniversities.”).

Congress recognized the need for such a broad and diverse

officer corps when it passed the Solomon Amendment. See

141 Cong. Rec. H5963 (daily ed. June 14, 1995) (statement

13

of Rep. Solomon) (“We depend on our all-volunteer

military. We want that cross-section of America.”’).

Historically, imstitutions of higher learning themselves

have recognized an interest im training officers and

providing the skills necessary for a strong military. See

Neiberg, supra, at 133 (quoting, for example, executive

director of state college and university association, in 1970:

“(T]he belie[f] that officers in the military should come from

imstitutions all over the country, and that this diversity of

background held to maintain a democratic leadership in the

military . . . is a principle which we would not surrender

lightly”). These imstitutions acknowledged that skilled

officers were critical to our country’s national defense but

refused to cede their training exclusively to the military

academies. Jd. at 3. Instead, they concluded—at times in

the face of intense pressure from students and professors—

that maintaining their mstitutions’ influence on the military

outweighed any temporary objections to the military policy

of the day. Jd. at 103. Stated differently: Institutions of

higher learning were concerned less with the military’s

presence on their campuses than with their students’

presence in the military.

The civilian-military gap has widened at many colleges

and universities since the time of the Vietnam War.°

However, some modern-day academics contimue to

understand the value of training citizen-soldiers, including

aS a means to counter an objectionable law or policy. The

co-chair of Columbia University’s Task Force on ROTC, for

* During World War I and World War II, a

schools such as Harvard and Yale gave their lives in *

numbers”; this year, op cuiah, Uinaede antenna anaes

student included only 8 who chose careers in the military. See T. Trent

Gegax & Evan Thomas, The Family Business, Newsweek, at 24 (June

20, 2005).

14

example, said in support of an ultimately unsuccessful

resolution to reestablish the ROTC on campus that: “(T]he

most powerful agent of change we can provide is Columbia-

educated leaders for the military... . You cannot effect

change without engaging an issue. Universities are vital

when they educate and irrelevant when they boycott.” Final

Report of the ROTC Task Force, The Case for ROTC at

Columbia (statement by James H. Applegate), at *15-16

(May 6, 2005), at http://www.columbia.edu/cu/senate/

committees/rotc/0505rotcreport. htm.

The military’s need for highly educated officers with

varied perspectives is especially pronounced as it engages in

the fight against terrorism and employs increasingly

complex strategies and technologies. See Hearing Before

the Subcomm. on Military Readiness of the House Armed

Services Comm., 107th Cong. (2002) (statement of Gen.

Donald G. Cook, Commande., Air Education and Training

Command, U.S. Air Force) (“Education requirements have

grown in recent years due to the .. . increased need for

specialized education and training in today’s dynamic

combat environment.”’”). In the War on Terror, the enemies

we face are often asymmetrical in capabilities and non-

traditional in tactics. Creative, progressive thinking

therefore is crucial as we conceive future military strategies.

See generally THOMAS P.M. BARNETT, THE PENTAGON’S

NEW MAP: WAR AND PEACE IN THE TWENTY-FIRST

CENTURY 9-59, 89-96 (Putnam 2003) (explaining need for

new operating theory for national security and military

operations in post-Cold War environment and describing

rise of asymmetrical threats); see also Beth Asch & James

R. Hosek, Looking to the Future: What Does

Transformation Mean for Military Manpower and

Personnel Policy?, at 2 (RAND Corp. 2004) (quoting Sec.

of Defense Donald Rumsfeld: “Transformation must

encourage a culture of creativity and intelligent risk taking

15

and promote a more entrepreneurial approach to developing

military capabilities.”) (internal quotations omitted).

Officers not steeped in the pre-9/11 military doctrines of the

academies are an important part of this effort.

Furthermore, modern-day officers need to be well

educated in the history, culture, politics and sensibilities of

the world’s diverse populations to effectively represent our

country abroad. Recognizing this, the military is “more

aggressively pursuing leaders’ education now than during

any other period of conflict in our history. In addition to

preparing leaders for specific billets, [the military is]

educating them to promote intellectual pluralism, increase

their cultural awareness, and to encourage a ‘lifetime of

learning’.” See Hearing Before Senate Comm. on Armed

Services To Receive Testimony on the Status of the U.S.

Army and U.S. Marine Corps in Fighting the Global War on

Terrorism, 109th Cong. 5 (2005) (statement of Gen. Peter J.

Schoomaker, Chief of Staff, U.S. Army). Because civilian-

trained officers embrace “a value system . . . consistent with

American society, by virtue of having lived in a civilian

environment,” Neiberg, supra, at 3, they help ensure that our

military exports an accurate impression of America’s values

and ideals as our strategic engagements bring us in contact

with other cultures and religious faiths.

Civilian-trained officers also increase the racial diversity

of the military, something that this Court and the military

have deemed to be of vital importance. Just last Term, in

Grutter v. Bollinger, the Court cited an amici curiae brief

submitted by “high-ranking retired officers and civilian

leaders of the United States military” in support of the

Court’s conclusion that law schools have a compelling

interest in a diverse student body. 539 U.S. 306, 331

(2004). The Court explained that: “Based on [their]

decades of experience, a highly qualified, racially diverse

officer corps . . . is essential to the military’s ability to fulfill

16

its principle mission to provide national security.” Id.

(internal quotations and citation omitted).

B. Lack of On-campus Military Recruiting Would

Significantly Hinder the Military’s Ability to

Recruit Sufficient Officers—both Quantitatively

and Qualitatively.

Even under the best of conditions, military recruiters

must Overcome several obstacles in convincing students to

forego careers in the private sector in favor of joining the

military. In the case of law students, many law firms and

other private employers hire recent law graduates at

considerably higher salaries for jobs that demand

significantly less personal sacrifice. The military, by

contrast, cannot negotiate salaries and has limited ability

even to negotiate where a student will be stationed. See

Decl. of Rear Admiral Jeffrey L. Fowler, U.S. Navy ¥ 6,

F.A.1.R. (03-4433) (hereinafter “Decl. of U.S. Navy’).

But the current conditions are far from ideal. Méilitary

recruiters presently face the most challenging recruiting

environment in the history of our all-volunteer military. See

Major Gen. Michael D. Rochelle, Remarks at Army

Recruiting Commander Briefing (May 20, 2005), available

at http:// www.defenselink. mil/transcripts/2005/tr20050520-

2881.html. Unemployment is at sustained historic lows.

And with the soldiers, Marines, sailors, Coast Guardsmen

and airmen of our Armed Forces engaged in extended

combat in Afghanistan, Iraq and elsewhere, the demand for

new recruits is severe. See, e.g., Robert Burns, Army

Headed to Recruiting Shortfall, ASSOC. PRESS, June 8, 2005

(stating that Army likely will fall short of its full-year

recruiting goal for first time since 1999). The Solomon

Amendment encourages institutions that benefit from

taxpayer funds to give the military a fair chance to identify

officer candidates.

17

Although most law schools currently comply with the

Solomon Amendment rather than forgo federal funds, many

would stop granting access to military recruiters if the

Solomon Amendment was struck down. The bylaws of the

Association of American Law Schools (“AALS”), to which

166 of the 189 law schools accredited by the American Bar

Association belong, require member law schools to exclude

from recruiting on their campuses any employer that

discriminates in hiring based on, among other things, sexual

orientation. See Bylaws of the AALS, art. VI, § 6-3(b), at

http://aals.org/bylaws.html. Given the potential financial

impact on schools that do not comply with the Solomon

Amendment, the AALS has amended its nondiscrimination

policy to provide an exception for military recruiting. See

AALS Exec. Dir. Carl Monk, Memorandum to Deans of

Member Schools (January 24, 2000), at http://aals.org/00-

2.html. However, but for the Solomon Amendment, nearly

88 percent of the nation’s ABA-accredited iaw schools

would follow the AALS bylaws and ban the military from

recruiting on their campuses without any federal

consequences.

This would cripple the military as it attempts to maintain

a well-rounded JAG Corps that is filled with the most

talented and diverse law students available. See Decl. of

U.S. Army { 10 (stating that sixty percent of all new judge

advocates are recruited from civilian ranks). As discussed

below, the role of the JAG Corps in the military—and our

society—it too important to be so hindered. Cf Hamilton v.

Regents of the Univ. of Cal., 293 U.S. 245, 263 (1934)

(“Whatever tends to lessen the willingness of citizens to

discharge their duty to bear arms in the country’s defense

detracts from the strength and safety of the government.”’).’

7 At least one circuit court has indicated that individual students are

without recourse as well. In Nomi v. The Regents for the University of

18

C. JAG Officers Play an Indispensable Role in an

Increasingly Complex Military.

The complexity, breadth and importance of the issues

that judge advocates participate in require the best and

brightest attorneys available. Judge advocates are deployed

throughout the world, providing direct advice and assistance

on a daily basis to combatant commanders on issues such as

military justice, the rules of engagement, target lists, the

establishment of war crime tribunals, international treaties

and the law of armed conflict. See Decl. of U.S. Navy { 1,

at 2; Decl. of Brigadier Gen. Walter E. Gaskin, US.

Marines § 1, at 2, F.A.1.R. (03-4433) (hereinafter “Decl. of

U.S. Marines”). Judge advocates also are involved in non-

combat operations, including humanitarian and disaster

relief missions. Decl. of U.S. Army J 5. And, as explained

more thoroughly in the amicus curiae brief submitted by the

Judge Advocates Association, judge advocates in all

branches of the Armed Services are providing critical

support in the War on Terror. See generally Brief for Judge

Advocates Association as Amicus Curiae at 8-11. From

offensive operations against suspect terrorists to civil

rebuilding projects, judge advocates are supporting their

commanders and fellow soldiers.

Judge advocates also administer a system of military

justice intended to field a disciplined, effective military

Minnesota, 5 F.3d 332 (8th Cir. 1993), the Eighth Circuit dismissed a

law student’s challenge to the University of Minnesota Law School’s

policy of prohibiting the military from recruiting on campus. The

student, who wished to meet with military recruiters, argued that the

school’s policy violated his First Amendment rights. The court

concluded that because the student had graduated by the time of his

appeal, the case was moot. Given the time it takes for a case to work its

way through the judicial system, other students likely would face a bar

to full adjudication of similar constitutional claims.

19

force and ensure that the rights of all military personnel are

safeguarded. See Decl. of U.S. Army 7 6. This role of the

military lawyer as protector and enforcer of military law is

crucial considering the closed nature of military society, see

Parker, 417 U.S. at 743 (“{T]he military is, by necessity, a

specialized society separate from civilian society.”), and the

unique laws that govern it, id (“[MJilitary law ... is a

jurisprudence which exists separate and apart from the law

which governs in our federal judicial establishment.’’)

(quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)); see

also Dynes v. Hoover, 61 U.S. 65, 79 (1857/) (explaining

that Congress may provide fur trial and punishment of

military and naval offenses in manner practiced by civilized

nations, and such power has no connection with judicial

power defined by third article of the Constitution).*®

The functioning of the military justice system is vital not

only to the everyday operations of our Armed Forces, but

also to the image and perception of the United States abroad.

Indeed:

The ability to fairly and equitably address

misconduct and simultaneously deter others

from wrongdoing ultimately bolsters the

operational effectiveness of our military by

maintainmg the trust between service

members, host nations, and the American

people, thereby strengthening the national

security interests of the United States.

Decl of Major Gen. Jack L. Rives, U.S. Air Force 5,

F.A.1R. (03-4433) (hereinafter “Decl. of U.S. Air Force’’).

JAGs have been called on in this capacity recently in several

* Further, “{aJn Army is not a deliberative body. It is the executive

arm. Its law is that of obedience. No question can be left open as to the

right of command in the officer, or the duty of obedience in the soldier.”

United States v. Grimley, 137 U.S. 147, 153 (1890).

20

high-profile matters, including the courts martial of those

involved with the publicized incidents at Abu Ghraib and

charged with misconduct on the battlefield of Iraq.

Regardless of the outcome of these cases, the proper

functioning of the military justice process bolsters the

credibility of the military and emphasizes our country’s

commitment to the Rule of Law.

Military lawyers’ understanding of military justice also

occasionally serves to counterbalance the members of the

military’s civilian leadership and to restrain military policy,

especially in wartime. As Major General Jack L. Rives,

U.S. Air Force, has explained:

It’s especially important in the deployment

environment for judge advocates to balance

their ‘can do’ approach to mission

accomplishment with the need to say ‘no’

when ‘no’ is the right answer. Deployed

commanders often have a heightened sense

of mission and of the need to accomplish

important matters ‘sooner than later.’ But

sometimes, the Jaw will not permit

commanders to do what they want to do,

when they want to do it... . The JAG must

explain the rules, provide the right advice

always, and preclude problems by telling

commanders what they need to know—even

when it’s difficult.

Maj. Gen. Jack Rives, Expeditionary Law: Remarks on

How to Succeed in the Deployed Environment, 51 A.F.L.

REV. 345, 349 (2001).

For example, citing the Constitution, federal law, the

Geneva Conventions and the Uniform Code of Military

Justice, JAG officers representing certain detainees at

Guantanamo Bay, Cuba recently challenged the legal

21

authority of the government to try the detainees by military

tribunal. See, e.g., Anne Gearan, Detainees’ Lawyers

Challenge Supreme Court, ASSOC. PRESS, Jan. 14, 2004

(describing military lawyers’ urging for access to civilian

review as between that of government and detainee

activists); see also Pamela Hess, Military Lawyers Criticize

Tribunal, UNITED PRESS INT’L, Jan. 15, 2004 (describing

military lawyers’ actions as “watershed” event for

America’s military legal community).

JAG officers also have been front and center on the

controversy over the treatment of detainees at Guantanamo

Bay, Cuba. A JAG officer assigned to a war crimes task

force drafted a memo objecting to certain aggressive

interrogation policies allegedly urged, in part, by the

military’s civilian leaders. See James Gordon Meek, At War

with Gitmo Grilling, N.Y. DAILY NEWS, Feb. 13, 2005; cf.

Andrew Rosenthal, Editorial, Legal Breach: The

Government’s Attorneys and Abu Ghraib, N.Y. TIMES, Dec.

30, 2004 (quoting Jeh Johnson, former Secretary of Air

Force: “Military lawyers . . . tend to see things through the

prism of how it will affect their people if one gets captured

or prosecuted”). And before the media was reporting the

allegations at Abu Ghraib, a group of military lawyers,

displeased with the decisions of their politically appointed

supervisors on the issue of interrogations, met with the

Association of the Bar of New York City. The group

subsequently compiled a report that examined the

government’s policies and United States and international

law governing the treatment of military prisoners. See Tom

Regan, Military Lawyers Advised Pentagon Two Years Ago

to Protect Prisoners, CHRISTIAN SCI. MONITOR, May 17,

2004.

Thus, JAGs act as a bridge between civilian and military

institutions and as a check on overzealous policy. The

ability of military lawyers to offer such balanced and

22

independent views, however, requires a JAG Corps with

diverse perspectives and backgrounds and the capacity to

effectively address both sides of difficult issues.

Ill. THE SOLOMON AMENDMENT IS

NARROWLY TAILORED.

A. On-campus Recruiting is the Military’s Most

Effective Tool to Create a Strong, Diverse JAG

Corps.

The Third Circuit purported to “balanc[e] the First

Amendment interests implicated by the Solomon

Amendment with competing societal interests to determine

whether the statute transgresses constitutional boundaries.”

F.A.LR., 390 F.3d at 234. Although the court assumed the

government’s interest in “recruiting talented lawyers’ is

compelling, it concluded that the balance does not tip in the

government’s favor because “the means must be carefully

tailored to achieve those ends.” Jd. According to the court,

“{ujnlike a typical employer, the military has ample

resources to recruit through alternative means,” which “may

be more costly” but are not necessarily less effective. Jd. at

234-35.

The court’s perspective is flawed. On-campus recruiting

is the single most effective means for the military to make

initial contact with a broad range of prospective applicants

and to discuss the benefits of a career in the JAG Corps. See

Decl. of U.S. Marines J 6; Decl. of U.S. Navy | 4. Without

equal access to law schools, the potential applicant pool

would be limited to those already familiar with, and

interested in, military careers. Indeed, for students without a

military background, the primary means of learning about a

career in the JAG Corps are law school career services

offices and on-campus contact with JAG Corps

representatives. See Decl. of U.S. Army 7 7. For many

students, this representative is the first judge advocate they

23

will have ever met. See Dunlap, Jr., The Erosion of Civilian

Control of the U.S. Military, supra, at 367 (“As military

service becomes imcreasingly rare among the general

population and as military education programs disappear

from many college campuses, few opportunities allow for

contact with anyone associated with the armed forces.”’).

Thus, access to law school campuses provides students

with what is arguably the most important aspect of military

recruiting—personal interaction with the men and women of

the Armed Forces. See Decl. of U.S. Navy 14; Decl. of

U.S. Marines J 8. An Air Force survey indicated that “over

43% of the [Air Force] JAGs who have been selected from

2000 to 2004 stated that their face-to-face on-campus

interview were critical in their decision to apply.” Decl. of

U.S. A Force ¥ 19. This is not surprising. The position of

respondents notwithstanding, uniformed servicemen and

women are not widely regarded as “bigots.” See Adam

Liptak, Colleges Can Bar Army Recruiters, N.Y. TIMES,

Nov. 30, 2004, at Al (quoting counsel for FALR. in

reference to Third Circuit’s decision: “Enlightened

institutions have a First Amendment right to exclude

bigots”). Rather:

[t}hroughout our history, especially in times

of war, like the present conflicts in

Afghanistan and Iraq, and the military

campaign against the Al Qaeda, a completely

different impression is imvoked [by

uniformed officers on campus]. The men and

women in uniform are almost universally

considered as heroes, sacrificing not only

their lives and well-being but living separate

from all the comforts of stateside living.

24

F.A.LR., 390 F.3d at 251 (Aldisert, J., dissenting).

Exposure to those who have chosen a life of service and

sacrifice is crucial to the military’s ability to recruit like-

minded individuals.

Furthermore, compared with private law firm jobs, the

JAG Corps selection process is extremely complicated and

protracted. See Decl of U.S. Marines ff 3-4; U.S. Ai

Force J] 9-12 (describing many stages of recruitment and

accession process). On-campus interviews provide

recruiters the opportunity to demystify this process and

provide answers to critical questions concerning the unique

role of the JAG Corps and the many advantages associated

with serving as a military attorney—including public service

and greater exposure and legal experience than those in the

private sector. See Decl. of U.S. Navy | 7; Decl. of U.S. Air

Force { 17. These on-campus meetings can be especially

enlightening because, im many cases, the recruiters are

recent law school graduates who can relate to students and

their various concerns and questions. See Decl of U.S.

Navy ¥ 7. Finally, as a practical matter, on-campus

interviews are the easiest and most convenient for the

students themselves, who are busy with classes and other

school-related activities. The advantages of being present

on campus—as opposed to requiring students to travel to a

nearby hotel or recruiting office—are evidenced by the

importance private employers place on the same access. See

Decl. of U.S. Marines 7 6 (“Employers engage in on-campus

recruiting primarily because it’s easy for students.’’).

* This Court has expressed similar sentiments: “Veterans have been

obliged to drop their own affairs and take up the burdens of the nation . .

. Subjecting themselves to the mental and physical hazards as well as the

economic and family detriments which are peculiar to military service

and which do not exist in normal civil life.” Regan v. Taxation With

Representation of Washington, 461 U.S. 540, 550-51 (1983) (internal

citations and quotations omitted).

25

Law schools clearly understand the benefits of on-

campus contact with students, as well. Many of the nation’s

top law schools boast about the effectiveness and, thus,

importance of their on-campus, law-firm recruiting

programs. See, e.g., Columbia Law School Career Services

Website, at http://www.law.columbia.edu./careers/career_

services/admitted (stating that Columbia organizes “one of

the largest, most comprehensive on-campus recruiting im the

country,” and that “[mJore than 70% of second-year students

secure employment im the early fall through these [on-

campus recruiting] programs.””); Boston College Law School

Fall Recruitment Guide, at http://www.bc.edu/schools/law/

services/career/jobsearch/recruitguide (stating that “{a]

significant percentage of the second and third-year students

will accept positions as a result of fall recruiting” while

others “will find their positions in the spring”); Stanford

Law School Office of Career Services Website, at

http://www.law.stanford.edu.admin.ocs/employers/recruitin

g (stating that “{t)]he majority of our 2L and 3L students

participate in, and find employment through,” the fall

Campus interview program).

If the government is enjoined from enforcing the

requirements of the Solomon Amendment, the JAG Corps’

ability to meet its recruiting mission—i.e., to attract and

recruit a highly educated and diverse applicant pool,

sufficient to meet current strength requirements—will be

degraded, along with the military’s ability to further the

national security of the United States. See Decl of U.S.

Army { 23; Decl. of U.S. Air Force { 31.

B. The Alternatives Cited by the Third Circuit are

Inadequate.

Among the alternatives to on-campus recruiting that the

Third Circuit offered were student loan repayment programs

and “sophisticated recruitment devices,” such as television

26

and radio advertisements. F.A.1.R., 390 F.3d at 234-35.

Implicit in the court’s statement is that the government,

unlike private law firms, has unlimited resources to devote

to recruiting for the Armed Services. This clearly is not the

case. But even if it were, these alternatives are inadequate

substitutes for on-campus recruiting.’

First, although the military is experimenting with

supplemental recruiting approaches, including multi-media

campaigns, see Cap. Eugene Y. Kim, The Judge Advocate

Recruiting Office: The Gateway to Service, 2004-JUN

ARMY LAW. 33, 38 (2004), these efforts cannot replace one-

on-one interaction with law students. See Decl. of Dr.

David S. Chu, Dep’t of Def. 76, F.A.LR. (03-4433)

(hereinafter “Decl. of Dep’t of Def.”); Dec. of U.S. Air

Force J 32; Decl. of U.S. Navy 4. One of the rationales

for law schools’ extensive fall and spring recruiting

campaigns is to provide students with a discrete period of

time to concentrate primarily on employment matters. Some

schools even schedule their fall recruiting programs before

classes begin, so that students have no distractions. Radio

and television advertisements or additional scholarships

cannot replace this sort of devoted attention. See Decl. of

U.S. Army 7 22; Decl. of U.S. Marine Corps. { 8.

© The court also stated that the “ill-will” generated toward the

military as the result of the Solomon Amendment actually impedes

military recruitment. 390 F.3d at 235. Given its position in this case,

the military obviously disagrees. Furthermore, the court’s argument just

as logically cuts the other way—that is, the Solomon Amendment is

critical to law schools’ advocacy against “Don’t Ask, Don’t Tell.”

Without the Solomon Amendment, law schools would be free to ban

military recruiters from their campuses. There would be no cause for

student and faculty protests on campus; no moment for public statements

to the media or elsewhere; and no need for prominent disclaimers of the

allegedly discriminatory law. In other words, it is Congress’ insistence

on a military presence that has given rise to these activities, which, in

turn, have effectively and publicly disseminated law schools’ message.

27

Second, the government’s financial resources are finite.

The monies necessary to implement the “more costly”

alternatives cited by the court are currently devoted to other

areas. Even apart from recruiting, the growing demands of

the war in Iraq and the global military environment, as well

as the domestic budgetary process in general, are placing

increasing constraints on the military’s resources. See Decl.

of Dep’t of Def. ¥ 7. It is not clear which of the funds

currently invested in the war on terror or supporting our

soldiers, Marines, sailors, Coast Guardsmen and airmen the

court suggests the military divert.

IV. THE THIRD CIRCUIT’S REASONING WOULD

PERMIT ANY INSTITUTION TO DENY THEIR

STUDENTS ACCESS TO MILITARY

RECRUITERS ON THEIR CAMPUSES FOR ANY

REASON.

Nothing in the Third Circuit’s reasoning is limited to law

schools, or the current controversy over alleged

discrimination in military hiring. If adopted, the Solomon

Amendment’s application to other institutions of higher

learning—including graduate medical, nursing, engineering

schools, as well as undergraduate colleges and

universities—would be in jeopardy. See 10 U.S.C. §

983(b)(1) (referrmg only to “an institution of higher

education”).

Many colleges and universities, for example, currently

allow ROTC on campus only out of fear of losing federal

funds through operation of the Solomon Amendment. See,

e.g., Ryan Foley, UW-Stout Chancellor Reverses Decision

on ROTC, Fearing Loss of Federal Funds, DULUTH NEWS

TRIB., June 1, 2005. And Columbia University is

comfortable maintaining its ban on ROTC despite having

“made the difficult decision” to allow military recruiters on

campus only because “(t}here has not yet been an attempt to

28

enforce the . . . ROTC-related provisions of the Solomon

Amendment.” Final Report of ROTC Task Force, supra, at

*11.

High school military recruiting also could be affected.

Although the Solomon Amendment does not regulate

military recruiting at high schools, a separate law, the so-

called Hutchinson Amendment, requires substantially

similar access and thus is vulnerable to the same arguments

levied by the law schools in this case. See 10 U.S.C. §

503(c) (2004);'’ see also Caroline Hendrie, High Court

Orders New Review of Michigan Title IX Case, EDUC. WK.

28, 2005 WLNR 7939974, May 11, 2005 (quoting general

counsel for National School Boards Association: “I see

implications for No Child Left Behind, because they really

are parallel requirements”).

Notably, the Third Circuit’s reasoning would permit

these institutions to ban military recruiters from their

campuses for any reason at all. The Third Circuit stated that

“the District Court’s scrutiny of the law schools’ belief that

the presence of military recruiters will undermine their

expressive message about fairness and social justice violates

the [Boy Scouts of America v.] Dale Court’s instruction to

‘give deference to an association’s view of what would

impair its expression.” F.A.LR., 390 F.3d at 233.

According to the court, “the reason why there was ‘no

question’ . . . that a gay scoutmaster would undermine the

Boy Scouts’ message was because the Boy Scouts said it

would.” Id. (emphasis in original). Under this amorphous

“ Section 503(c)(1)(A) provides the following with respect to

access to secondary schools: “Each local educational agency receiving

assistance under the Elementary and Secondary Education Act of 1965 .

. . Shall provide to military recruiters the same access to secondary

school students as is provided generally to postsecondary educational

institutions or to prospective employers of those students.”

29

and entirely subjective standard, a college or university

would be justified in banning military recruiters from its

campus based on any objection to a given law or military

policy—from a disfavored military operation abroad,'* to

base-closings, to any other of the military’s recruitment

standards, such as age and physical fitness.

This would, in essence, permit institutions of higher

learning to allow the military to function on their campuses

only when and if they see fit. Such arbitrary interferences

with the military and national security—especially where

those who wish to protest have numerous effective outlets

for their views—are not imagined under the Constitution.

They should not be required under the Constitution either.

'? At least one high school has voted to prohibit military recruiting

because of disagreement with the military's operations in Iraq. See

Dean Paton, Rift Over Recruiting at Public High Schools, CHRISTIAN

Sci. MONITOR, May 18, 2005.

30

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully submitted,

PHILIP B. ONDERDONK, JR. ROBERT P. PARKER

National Judge Advocate Counsel of Record

THE AMERICAN LEGION ANDREW J. PUGLIA LEVY

P.O. Box 1055 PAUL, WEISS, RIFKIND,

Indianapolis, IN 46206 WHARTON & GARRISON LLP

1615 L Street, N.W.

Washington, D.C. 20036

(202) 223-7300

July 15, 2005 Counsel for Amicus Curiae”

* We gratefully acknowledge the assistance of Maggie E. Sklar, a

student at Georgetown University Law Center, in the preparation of this

brief.