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

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS,

ET AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF

SERVICEMEMBERS LEGAL DEFENSE NETWORK

IN SUPPORT OF RESPONDENTS

SHARRA E. GREER LINDA T. COBERLY

KATHI S. WESTCOTT Counsel of Record

SERVICEMEMBERS LEGAL WINSTON & STRAWN LLP

DEFENSE NETWORK 35 West Wacker Drive

P.O. Box 65301 Chicago, IL 60601

Washington, DC 20035 (312) 558-5600

(202) 328-3244

GENE C. SCHAERR TYLER M. PAETKAU

WINSTON & STRAWN LLP JENNIFER GARBER

1700 Washington Street, NW WINSTON & STRAWN LLP

Washington, DC 20006-3817 101 California Street

(202) 282-5000 San Francisco, CA 94111

SEPTEMBER 2005 (415) 491-1000

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QUESTIONS PRESENTED

Did the Third Circuit correctly conclude that the Solomon

Amendment imposes an unconstitutional condition on

federal funding by requiring colleges and universities, as a

condition on their receipt of federal funds, to provide

military recruiters with the same support and access

provided to any other recruiter, despite the schools’

longstanding policy of refusing to abet employers engaged

in discrimination?

More specifically, did the Third Circuit correctly refuse to

accept the Government's bare assertion that the Solomon

Amendment's intrusion on the rights of civilian institutions

is necessary and its argument that this Court's cases on

military deference preclude further judicial scrutiny?

RULE 29.6 DISCLOSURE STATEMENT

The Servicememisers Legal Defense Network is a non-

profit legal services and policy organization. It has no

corporate parents or affiliates.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............::+000 000 vores ere one cee soe seeelll

RULE 29.6 DISCLOSURE STATEMENT ..............++0++000 iii

TABLE OF AUTHORITIES ...........:ssscsccsseseecensererseeseces vi

INTERESTS OF AMICUS CURIAE .........0.000eeeeeeeeeeerennes 1

STATEMENT OF THE CASE ..........0sscecseseesseeeseereeeeeee 2

SUMMARY OF ARGUMENT .........::ccccceeseeereeseesereetenes 4

PEIIIGT osisccccscocitnictsointcivsapsicenrvisabiinetoncmmiavodmat 6

I. This Court's military deference cases have no

application here because of the nature of the

A. Principles of deference in military affairs

do not apply to laws that direct the

conduct of civilian institutions in civilian

B. Deference is not warranted here because

the Solomon Amendment does not

concern a matter that is within the

military’s unique expertise and

inappropriate for judicial resolution ................. 13

C. Inenacting and amending this

legislation, Congress made no empirical

judgments or studied choices to which

v

Il. Regardless of deference, this Court cannot

ignore the fact that neither the Government

nor its amici have shown that the Solomon

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Laird,

466 F.2d 2B3 (1972)...........-cccccvecrecrcecrrecsscserseceseeses 16

Boy Scouts of America v. Dale,

BBD UB, GED CIBER... rcrrcccecccccecsscsceccecscsessreses 17-18

Chappell v. Wallace,

€G2 US. 296 (IGEB)......cc.crccccersccccoscscccccccseccessoseces 15

Forum for Academic and Institutional Rights v.

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

Frontiero v. Richardson,

GEE US. GIF (BGTD.....0.crccccrercverccscoscccccceseapsesoess 15-16

Gilligan v. Morgan,

| Sf eee 4, 13, 14-15, 16

Goldman v. Weinberger,

OD TG, Ba GI cece ccesecovscrcscccccsascsccccepevecenes 7,15

Greer v. Spock,

GRE UE, GD CIO nec recccccccrcncsccssscscscccesesesccccesens 10

Hamdi v. Rumsfeld,

BEB US. GOP GIBB. coccccccecesncccsccccccccccccoessenscecseess 8

Hartmann v. Stone,

68 F.3d 973 (6th Cir. 1995)..........cccccceceeceeeeneeseenenes 16

Home Bldg. & Loan Ass‘n v. Blaisdell,

Laird v. Tatum,

GBB UGE. 1 (IGTDD.....ceccscecsccceeccescsecees coscvescsceess 10, 13

Lamprecht v. FCC,

958 F.2d 382 (D.C. Cir. 1992).......0.ccccceceeceereereneneeees 7

Orloff v. Willoughby,

BE Pe ee irc ccccenctnerecceunasesccesersenimnspennvenesios 15

Parker v. Levy,

a ere eee 4,10

Rostker Vv. Goldberg,

GBD UG, GP CRIBAD....0ccvcccccscccecccccocececscccscses essed passim

Schlesinger v. Ballard,

GBD UB. GEG CID OD. ccccrescccccccseccvcccccccccccnpenseoscccoss 15

Solorio v. United States,

GD Ee, Gad Gi i ccccccccssccerececcccvccsecessaesocccscnsume 10

United States v. Albertini,

ee 10

United States v. O’Brien,

a 8 8, 12-13, 18

United States v. Robel,

TEE Fa icc cc cccesccccsssvindusaniovesessecsensocsten 7

Statutes and Constitutional Provisions:

U.S. CONST. art., § 8, Cl. 12-14............cccecceeeneeeeeneeeeeees 6

viii

National Defense Authorization Act for FY 1994

Pub. L. No. 103-160, § 571(a)(1), 107 Stat. 1547,

BEI, Gi Te se stccdrpnntn cosessscectiviccasisinecsnteess 1

Ronald W. Reagan Nat'l Defense Authorization

Act for FY 2005, Pub. L. No. 108-375, § 552, 118

Seiki 3

Solomon Amendment, 10 US.C. § 983.........--:0-00000 1, 26

Other Authorities:

HLR. REP. 108-443 (2004)........ccccccscsseseeeeeseeeeees 19, 21, 22

140 CONG. REC. (1994):

REA Oe ieee a lactone eh, 19

REIS Sei etal ob ee to te wed Bile 18

IIA 5 cased csiasibcibasihce iiasuitepebeapcileaaiaat 18

RITE SA MMEESE CUS PREETI OER BONDE SD 20

a 18

141 CONG. REC. (1995)

ARIS ERED RARE AS Oy AR ABBE ES 19

142 CONG. REC. (1996)

RAE SERRE PRIEST POEL IY a 18

150 CONG. REC. (2004)

ELEN ELIE IID IE LE a

0 ROLE SRI INS ae 21-22

VERDI IG LEE ELLE PR 2

ECE OE eR C0 Set a Set em 18-19

AOA IDET Daa Te ase aed Oe 2

a 21-22

I a a 2

151 CONG. REC. (2005)

ARS Pe RRM See ee OE 2

EDR eI ELEY 9 RARE ML NER 19

BRIEF AMICUS CURIAE OF

SERVICEMEMBERS LEGAL DEFENSE NETWORK

Pursuant to Supreme Court Rule 37.3,1 Amicus Curiae

Servicemembers Legal Defense Network (“SLDN”) submits

this brief in support of Respondents. This brief addresses

the question whether the Third Circuit correctly refused to

accept the Government's bare assertion that the Solomon

Amendment, 10 US.C. § 983, is necessary to serve a

compelling military need and its argument that this Court's

cases concerning deference to the military and to Congress

in military affairs preclude further judicial scrutiny of the

justifications offered for the statute.

INTERESTS OF AMICUS CURIAE

SLDN is a national, not-for-profit legal services and

policy organization dedicated to protecting the rights of

military personnel affected by the military's “Don’t Ask,

Don’t Tell” policy. See National Defense Authorization Act

for Fiscal Year 1994, Pub. L. No. 103-160, § 571(a)(1), 107

Stat. 1547, 1670 (Nov. 30, 1993) [hereinafter “Don’t Ask,

Don’t Tell”]. SLDN’s honorary board is comprised of

retired senior military officers and senior enlisted members,

and many of the organization's governing board members

and staff members are military veterans.

SLDN works to ensure that all Americans have the

freedom to serve. Its mission is to end discrimination

against and harassment of military personnel! affected by

1 Counsel for Petitioners and counsel for Respondents have consented to

the filing of this brief; letters evid =cing such consent are on file with the

Clerk. No party or counsel for « party to this case authored this brief in

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

members and counsel has made a monetary contribution to the

preparation or submission of this brief.

2

“Don’t Ask, Don’t Tell” and related forms of intolerance.

For more than a decade, SLDN has worked to end *he

military's discriminatory policy and has provided fre. legal

services to those harmed by “Don’t Ask, Don’t Tell.” SLDN

has responded to more than 6,900 requests for assistance

and has effected almost three dozen different changes to

SLDN’s work also encompasses the impact of the

Solomon Amendment, which effectively requires colleges

and universities to assist in the military's practice of

discrimination in recruiting as a condition on the receipt of

federal funding. In addition, each year, representatives of

SLDN speak at colleges and universities across the nation,

educating on the discriminatory impact of the “Don’t Ask,

Don’t Tell” policy. Given its familiarity with the military

and its many years of work in connection with the policy of

“Don’t Ask, Don’t Tell”—as well as with the Solomon

Amendment itself—SLDN not only has a great interest in

the outcome of this case but is uniquely well-positioned to

assist the Court in its consideration of these important

issues.

STATEMENT OF THE CASE

For many years, law schools have followed a policy of

refusing to provide recruiting assistance to employers that

engage in various forms of discrimination. In the 1970s, law

schools began to extend this policy to bar access to

employers that discriminate on the basis of sexual

orientation, and in 1990, the Association of American Law

Schools voted unanimously to include sexual orientation in

the list of protected categories in ‘aw school non-

The military has an explicit policy of discriminating on

the basis of sexual orientation~a policy known as “Don't

Ask, Don’t Tell.” As a result, law schools have typically

refused to offer the military's recruiters affirmative

assistance. Most law schools did not completely bar

military recruiters from their campuses, however, instead

providing accommodations that would enable military

recruiters to reach students without offending the

institutions’ non-discrimination _polici:s. Those

accommodations included, but were not limited to, allowing

military recruiters to recruit at alternate locations.

In 1994, Congress passed the Solomon Amendment,

which effectively required law schools to exempt the

military from their non-discrimination policies. In 2004,

after the pendency of this lawsuit (and partly in response to

it), Congress amended the statute to expressly require that

schools give the military access and assistance that is at least

equal in quality and scope to the access provided to any

other employer. Ronald W. Reagan Nat'l Defense

Authorization Act for FY 2005, Pub. L. No. 108-375, § 552,

118 Stat. 1811, 1911 (2004) [hereinafter “2004 Provision”. If

any part of a college or university fails to comply with the

terms of the Solomon Amendment, the entire institution will

be denied federal funding, including not only grants and

contracts from the Department of Defense, but also virtually

any federal grants or contracts available to the academic

institutions (other than student aid).

This lawsuit was brought by a coalition of law schools

and law faculty who contended that the Solomon

Amendment is an unconstitutional condition on federal

funding, requiring that law schools speak for, associate

with, and host military recruiters and disseminate the

military's recruitment message. Although the district court

denied the plaintiffs’ motion for a preliminary injunction,

the Third Circuit reversed, holding that the plaintiffs had

established a likelihood of success on the merits of their First

Amendment claims. See Forum for Academic & Institutional

4

Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004) [hereinafter

FAIR]. In the course of its ruling, the Third Circuit noted

that “the Government ha{d] chosen to submit no evidence

that would support the necessity of requiring law schools to

provide the military with a forum for, and assistance in,

recruiting.” Id. at 245. The Third Circuit rejected the

Government's bare assertion of military need, and it refused

to accept the Government's argument that this Court's cases

concerning deference in military affairs relieved it of further

obligation to demonstrate military need. Id. This Court

granted certiorari on May 2, 2005. 125 S.Ct. 1977 (2005).

SUMMARY OF ARGUMENT

One of the most important ideals of our system of

government is that even in times of military conflict, the

rights recognized by the Founders and conferred by the

Constitution cannot be arbitrarily impinged. Thus, as this

Court recognized more than seventy years ago, “even the

war power does not remove constitutional! limitations

safeguarding essential liberties.” Home Bldg. & Loan Ass’n v.

Blaisdell, 290 U.S. 398, 426 (1934).

To be sure, this Court has held that the military is, “by

necessity, a specialized society separate from civilian

society,” and thus “Congress is permitted to legislate both

with greater breadth and with greater flexibility when

prescribing the rules by which [military society] shall be

governed.” Parker v. Levy, 417 U.S. 733, 743, 756 (1974).

Accordingly, in several cases, this Court has deferred to

empirical judgments by Congress and the armed forces with

regard to certain “complex, subtle, and professional

decisions as to the composition, training, equipping, and

control of a military force.” Gilligan v. Morgan, 413 U.S. 1, 10

(1973). Even in cases where deference is appropriate,

however, this Court has recognized that it must not

“abdicate” its “ultimate responsibility to decide the

constitutional question.” Rostker v. Goldberg, 453 U.S. 57, 67

(1981).

In this case, the Government and its amici seek to expand

the notion of military deference far beyond what this Court

has previously recognized. They contend that even if the

Solomon Amendment infringes on the First Amendment

rights of civilians and civilian institutions, this Court should

uphold it without any meaningful review at all, simply

because it has an articulable connection to military affairs.

Moreover, they ask this Court to presume that Congress

must have found a real military need for the infringement,

despite the legislative history that shows that the law was

motivated by a desire to punish schools, not by any

empirical judgment that the access the military already had

to law school and university students was insufficient to

meet its needs.

The Government's reliance on military deference in this

case must be rejected for several reasons. First, the concept

of judicial deference in military affairs has no application

where —as here—Congress is regulating the conduct of non-

military personnel in non-military space. Second, deference

is not warranted here because the Solomon Amendment

concerns recruiting on Jaw school and _ university

campuses—a matte: with regard to which the military has

no unique expertise and about which the judiciary is

perfectly well equipped to make judgments. And third, in

enacting the Solomon Amendment, Congress conducted no

factual investigation and made no studied choice between

alternatives, and thus there is no empirical judgment to

which the judiciary can defer.

Moreover, regardless of whether concepts of deference

apply in this context, this Court cannot ignore the fact that ~

there has never been a credible showing—either before

Congress or in this litigation—that the Solomon

Amendment and its 2004 “equal access” provision were no

broader than necessary for the military to meet its recruiting

needs. When the Solomon Amendment was originally

enacted, there was no reason to believe that law school

policies of restricting access to employers who discriminate

had actually impaired the military's ability to fill its needs

for new lawyers. Indeed, as discussed below, the

Department of Defense actually objected to the Solomon

Amendment in 1994, on the ground that it was not

necessary. See infra at 19-20. Neither the Government nor

its amici have pointed to any evidence that the military is

unable to recruit a sufficient number of qualified applicants

through the many other means of access it has to students at

colleges and law schools. And no one has even suggested

that the military was unable to meet its recruiting needs for

lawyers because of any inadequacy in the accommodations

that were in place before 2001, when the military began to

demand “equal access.” Under these circumstances, to

uphold the Solomon Amendment based on the

Government's bare assertion of military need would indeed

be an “abdicat[ion]” of this Court's responsibility to decide

constitutional questions.

ARGUMENT

The modern concept of military deference is based on

two ideas: Congress’s power to raise and regulate armies

and navies, U.S. CONST. art. I, § 8, cl. 12-14, and the

judiciary’s presumed lack of competence in certain matters

of military strategy and operations. This Court has

recognized both of these rationales in granting “a healthy

deference to legislative and executive judgments in the area

of military affairs.” Rostker v. Goldberg, 453 U.S. 57, 66

(1981).

The second of these ideas—the courts’ presumed lack of

competence in military affairs—is critical to the concept of

military deference. See id. at 65. Military deference cannot

be justified purely by reference to the fact that Article I of

the Constitution gives Congress the power to raise and

regulate armies. After all, Congress always acts in

furtherance of powers granted by Article I, and yet this

Court does not always defer to its judgments.?

Significantly, “deference does not mean abdication.”

Rostker, 453 U.S. at 70. Congress is not “free to disregard the

Constitution when it acts in the area of military affairs,” id.,

and thus this Court has made clear that its deference in

military affairs does not insulate congressional or military

judgments from meaningful judicial review. Id. at 70

(“[s]imply labeling the legislative decision ‘military’ . . . does

not automatically guide a court to the correct constitutional

result”); see also United States v. Robel, 389 U.S. 258, 263-64

(1967) (“the phrase ‘war power’ cannot be invoked as a

talismanic incantation to support any exercise of

congressional power which can be brought within its

ambit”). This Court will defer—not to rhetoric or

constitutional arguments—but to specific “professional

judgment{s] of military authorities concerning the relative

importance of a particular military interest.” Goldman v.

Weinberger, 475 U.S. 503, 507 (1986). And even where the

doctrine of military deference applies, it does not excuse the

Government from showing the extent to which its restriction

on constitutional rights is actually tailored to serve

important governmental interests.

2 As then-Judge Clarence Thomas observed in a non-military context:

“We know of no support . . . for the proposition that if the

constitutionality of a statute depends in part on the existence of certain

facts, a court may not review a legislature's judgment that the facts exist.

If a legislature could make a statute constitutional simply by ‘finding’ that

black is white or freedom, slavery, judicial review would be an elaborate

farce.” Lamprecht v. FCC, 958 F.2d 382, 392 n.2 (D.C. Cir. 1992).

Indeed, only last Term, this Court undertook careful

constitutional review of the Government's detention of an

American citizen as an enemy combatant, despite the fact

that the Government had invoked the principle of deference

to the Executive Branch in military judgments. See Hamdi v.

Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 2651-52 (2004)

(plurality op.). As the Court explained:

While we accord the greatest respect and

consideration to the judgments of military

authorities in matters relating to the actual

prosecution of a war, and recognize that the scope of

that discretion ..ecessarily is wide, it does not

infringe on the core role of the military for the courts

to exercise their own _ time-honored and

constitutionally mandated roles of reviewing and

resolving claims like those presented here.

Id. at 2649-50; see also id. at 2655 (Souter, J., concurring)

(judiciary is charged with “deciding finally on what is a

reasonable degree of guaranteed liberty whether in peace or

war’). Thus even when deference is appropriate, the

judiciary still bears the responsibility of deciding whether

the statute or military regulation infringes on the liberties

guaranteed in the Constitution.

In this case, the Government contends that this Court

should defer to the bare assertion by the statute’s sponsors

that it is necessary to compel civilian institutions to associate

with and speak on behalf of the military» As discussed

3 The Government contends that if the Solomon Amendment comes

within the scope of the First Amendment, this Court's analysis under the

intermediate standard for expressive conduct in United States v. O’Brien,

391 US. 367 (1968), should be conducted with due deference to

Congress's military judgments about the need for and breadth of the

statute. Brief for the Petitioners at 35-39 [hereinafter “Gov't Br.”). The

below, this position represents a dramatic and unjustified

expansion of military deference, both with regard to the

scope of the doctrine and with regard to the nature of the

deference Congress enjoys when the doctrine applies.

I. This Court’s military deference cases have no

application here because of the nature of the

congressional action under review.

By its nature, the congressional action at issue here is

entitled to no special quantum of deference. This Court

should reject the Government's and its amici’s reliance on

concepts of military deference for three different reasons.

First, the notion of military deference does not apply in the

context of a law that burdens the rights of civilians and

civilian institutions in civilian space. Second, neither the

military nor Congress has unique expertise beyond that of

the judiciary with regard to the effectiveness of various

methods of recruiting university and law school students,

and the courts are fully capable of considering such matters

themselves. And finally, the legislative history makes clear

that Congress did not make any empirical judgments about

whether the Solomon Amendment and its 2004 “equal

access” provision are necessary—and no broader than

necessary —for the military to meet its recruiting needs.

A. Principles of deference in military affairs do not

apply to laws that direct the conduct of civilian

institutions in civilian space.

The most obvious flaw in the Government's position on

deference is that it seeks to apply the doctrine to a law that

burdens the First Amendment rights of civilians in civilian

space. This Court's deference cases do not go nearly this far.

Government does not argue that military deference could save the

Solomon Amendment if it is subject to strict scrutiny.

10

Indeed, this Court has recognized the “traditional and

strong resistance of Americans to any military intrusion into

civilian affairs.” Laird v. Tatum, 408 U.S. 1, 15 (1972).

This Court has held that “Congress is permitted to

legislate both with greater breadth and with greater

flexibility when prescribing the rules by which [military

society] shall be governed.” Parker v. Levy, 417 U.S. 733, 756

(1974). Thus, for example, this Court has allowed the

military discretion to determine how it will prosecute crimes

committed by military personnel—even when they occur

off-duty and in civilian space. See, e.g., Solorio v. United

States, 483 U.S. 435 (1987) (military court has jurisdiction

over service member to prosecute crime committed off-duty

and in private home). Similarly, the Court has engaged in

deferential review with regard to restrictions placed on the

free speech of civilians in military space. See, e.g., Greer v.

Spock, 424 US. 828, 839 (1976) (rejecting First Amendment

challenge by political candidates to rule barring

campaigning on base, because military authorities had

adopted a “considered” policy, “objectively and

evenhandedly applied,” of keeping military activities on

base free from partisan political campaigns); United States v.

Albertini, 472 U.S. 675 (1985) (declining to scrutinize whether

rule barring certais: <ivilians with past security problems

from entering military base for demonstration was most

appropriate or narrow means of preserving security).

Unlike the laws and regulations at issue in these cases,

however, the Solomon Amendment is directed solely at the

conduct of civilian institutions in their own space. The

Solomon Amendment forces civilian institutions to speak

for the armed forces, to associate with them, and to assist in

their discriminatory practices. Thus it does not concern a

specific regulation within military society; it concerns how

civilian institutions must behave when the military reaches

into civilian society. The Third Circuit recognized this

11

important distinction and thus properly concluded that the

principle of deference to military judgment was not

applicable. FAIR, 390 F.3d at 245 n27. (“[T]his case

involves the military's compelled presence on the campuses

of civilian institutions.”).

This Court's decision in Rostker v. Goldberg, 453 U.S. 57

(1981), (cited in Gov't Br. at 39), does not support the

application of deference principles with respect to a law

imposing a burden on the constitutional rights of civilians in

civilian space. In Rostker, this Court invoked the notion of

military deference in the course of considering an equal

protection challenge to Congress's decision to compel only

men to register for the draft. Unlike this case, however,

Rostker was fundamentally about a decision by Congress not

to burden civilians unnecessarily. Recognizing that “[t}he

purpose of registration was to prepare for a draft of combat

troops,” Rostker, 453 U.S. at 76, the Court concluded that

congressional judgments about who should be required to

participate in the draft “are based on judgments concerning

military operations and needs” and necessarily began with a

military judgment about the “proper role of women in

combat,” id. at 68 (quoting S. REP. No. 96-826, at 157 (1980),

reprinted in 1980 U.S.C.C.A.N. 2612, 2647). “Since women

are excluded from combat, Congress concluded that

[women] would not be needed in the event of a draft, and

therefore decided not to register them.” Id. at 77.4

Moreover, the constitutional claim in Rostker was

brought by male registrants for the draft—individuals who

* As discussed below, Rostker is an example of how this Court has |

proceeded to engage in meaningful judicial review even after noting that

Congress is entitled to special deference in military affairs. See Rostker,

453 US. at 69-70, 87-88. The Court rejected the Government's argument

be replaced in the military context with rational basis review. Id.

From this perspective, this Court's decision in United

States v. O’Brien, 391 U.S. 367 (1968) —discussed at length in

the parties’ briefs—is instructive precisely because it is not

about military deference. Indeed, O’Brien shows that this

Court applies ordinary First Amendment analysis—and not

any deferential standard—in reviewing a military-related

justification on civilian speech. The petitioner in O’Brien

was convicted of burning his draft card as part of a public

protest, and the case concerned whether the law against the

destruction of draft cards impermissibly burdened his First

Amendment rights. Significantly, this Court did not defer to

Congress's judgment that the law was supported by an

Court decided the case under a general First Amendment

principle that would apply to any case concerning

expressive conduct, and it engaged in its own factual

analysis of the purposes served by the law — including the

specific administrative role of the draft card and the

information contained on it—and whether there were

“alternative means” of assuring the continuing availability

B. Deference is not warranted here because the

Solomon Amendment does not concern a matter

that is within the military’s unique expertise and

and law school students—is one about which the military

has no unique experience beyond what the judiciary itself

has. This is an issue the judiciary is capable of considering

on its own, in the same manner and with the same amount

of deference as when any other Act of Congress is

challenged.

As discussed above, the modern doctrine of military

deference is based on two ideas: Congress's constitutional

power to raise and regulate armies, and the judiciary’s

presumed lack of competence with respect to certain matters

of military strategy and operations. This Court made this

point clear in Gilligan v. Morgan, 413 U.S. 1 (1973), which is

cited by the Government's amici in describing the scope of

National Guard in a period of civil disorder and several

students were injured or killed. Among other relief, the

students sought “a judicial evaluation of the

of

the Ohio National Guard,” id. at 5, and demanded that the

district court “establish standards for the training, kind of

always to civilian control of the Legislative and Executive

* See Brief of Amici Curiae US. Congressman Richard Pombo et al. at 9,

12 [hereinafter “Pombo Br.”]; Brief of Amici Curiae Eagle Forum

Education and Legal Defense Fund at 8-10 (hereinafter “Eagle Forum

Br.”].

15

Branches.” Id. at 10 (emphasis in original). According to the

Court, it was “difficult to conceive of an area of

governmental activity in which the courts have less

For

example, this Court has declined to intervene in the

relationships between enlisted service members and their

superior officers (Chappell v. Wallace, 462 U.S. 296 (1983))

and in military promotion policies and assignments

(Schlesinger v. Ballard, 419 US. 498 (1975); Orloff v.

Willoughby, 345 U.S. 83 (1953)). The Court has also deferred

to the “considered professional judgment of the Air Force”

with regard to the importance of standardized uniforms in

preserving “the necessary habits of discipline and unity.”

Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (rejecting

Jewish service member's claim that military's rule against

non-uniform headgear infringed his right to free exercise).

Where the issue at hand does not fall within the

military's unique expertise, however, there is no basis for

the judiciary to review regulations or congressional action

with increased deference. In Frontiero v. Richardson, for

example, this Court considered an Equal Protection

challenge to a statute requiring female service members to

show proof of their husbands’ dependence before they

could seek dependent benefits, while requiring no such

proof from male service members who claimed their wives

as dependents. 411 U.S. 677 (1973). The Court applied strict

scrutiny and found that the military's goals of

“administrative convenience” and cost savings were

insufficient justifications for the sex-based classification. Id.

at 688-91. In so holding, the Court did not defer to

Congress's presumed conclusions about the need for this

legislation. See id. at 689. (“In order to satisfy the demands

16

of strict judicial scrutiny, the Government must

demonstrate” that the selected statutory scheme is actually

cheaper and more convenient than alternatives). ”

In this case, too, the Government is demanding that this

Court defer to the judgments of Congress and the military

with respect to matters that fall well outside the scope of the

military's unique expertise and that do not concern matters

of military strategy and operations, about which this Court

has a presumed lack of competence. See Gilligan, 413 US. at

10. There is no doubt that the military has a compeiling

interest in maintaining a strong volunteer force, including

college and law school graduates. But with regard to

whether the military has a compelling need to recruit on

campus in the same fashion as other employers do—and

whether other, less burdensome alternatives to the Solomon

Amendment would accomplish the same recruiting goals —

this Court is equally able to reach a conclusion. Indeed,

these questions have far more in common with an

employment discrimination case in federal court than they

have with this Court's cases granting deference to

congressional and military judgments regarding specific

military needs and operations. For this reason as well,

deference to Congress here is not warranted.

’ Other courts have expressly recognized that not all judgments that

relate to the military are entitled to deference. See Anderson v. Laird, 466

F.2d 283, 296 (1972) (per curiam) (Bazelon, C.J., concurring in judgment)

(refusing to grant special deference to judgment of military regarding

requirement that cadets at military academies attend religious services

because requirement did not “involve programs vital to our immediate

national security, or even to military operational or discip!ucary

procedures”); see also Hartmann v. Stone, 68 F.3d 973, 985 (6th Cir. 1995)

(refusing to grant military deference regarding regulation against

religious child care services on military base, because “the Army has

wandered far afield,” having ventured beyond “where the link to its

combat mission is clear”).

17

C. In enacting and amending this legislation,

Congress made no empirical judgments or studied

choices to which this Court can defer.

Military deference is inapplicable here for another

reason as well: there is no reasonable basis from which to

presume that Congress made empirical judgments or

studied choices to which this Court may now defer. This

Court has granted deference only with respect to Congress's

“studied choice of one alternative in preference to another”

in terms of furthering goals related to “military needs and

operations.” Rostker v. Goldberg, 453 U.S. 57, 69 n.6, 72

(1981). Even the Government characterizes this Court's

deference cases as relating only to “empirical judgments.”

Gov't Br. at 39 (emphasis added).

Even setting aside Congress’s failure to make factual

findings, the legislative history shows that Congress did not

base its adoption of the Solomon Amendment and the 2004

“equal access” provision on any credible factual evidence

that those measures were necessary for successful military

recruiting. There is no reason to believe that Congress

considered any less restrictive alternatives to these

enactments and concluded that those alternatives would be

insufficient. Indeed, even the Government has

characterized Congress’s decision as merely a “common-

sense conclusion that personal access to students on campus

furthers recruitment.” Reply Brief for the Petitioners in

Support of Petition for a Writ of Certiorari at 7-8; see also

Gov't Br. at 36 (“Congress reasonably concluded that equal

access to students enhances the military's recruitment

efforts.”). But even if it were true that the Solomon

Amendment “furthers recruitment,” that would not be

sufficient to justify a significant intrusion on the First

Amendment rights of civilians. See Boy Scouts of America Inc.

v. Dale, 530 U.S. 640, 648 (2000) (under strict scrutiny,

requiring proof that goals cannot be achieved through

18 .

means significantly less restrictive of First Amendment

freedoms); O’Brien, 391 U.S. at 377 (under intermediate

scrutiny, requiring proof that “the incidental restriction on

alleged First Amendment freedoms is no greater than is

essential to the furtherance of that interest”).

Moreover, the legislative history strongly indicates that

Congress’s true purpose in enacting the Solomon

Amendment was not military need at all but rather

retribution—to punish uncooperative law schools for their

intransigence. See, ¢.g., 140 CONG. REC. H3863 (daily ed. May

23, 1994) (statement of Rep. Pombo, co-sponsor of Solomon

Amendment) (statute would “send a message over the wall

of the ivory tower of higher education” that schools’ “starry-

eyed idealism comes with a price”); 140 CONG. REC. S8173

(daily ed. Jul. 1, 1994) (statement of Sen. Thurmond) (“It is

not unfair to refuse to pay money to an institution which

denies access to their facilities. It is just good business.”).

Most of the legislative history supporting the enactment

of the Solomon Amendment in 1994 consists of generalized

assertions regarding the importance of recruiting, without

supporting findings or evidence, such as statistics or

surveys, showing a real need for the Solomon Amendment.

FAIR, 390 F.3d at 225-27. The bill’s co-sponsor, for example,

asserted generally that the practice of many institutions of

denying access to military recruiters under an anti- -

discrimination policy represented a threat to national

security and that “[rjecruiting is the key to an all-voluntary

military.” 140 CONG. REC. H3861 (daily ed. May 23, 1994)

(statement by Rep. Solomon). Representative Goodlatte

similarly stated that “[cJampus recruiting is a vitally

important component of the military's effort to attract our

Nation's best and brightest young people.” 142 CONG. REC.

H5716 (daily ed. May 30, 1996) (statement of Rep.

Goodlatte); see also 150 CONG. REC. H1705 (daily ed. Mar. 30,

2004) (statement of Rep. Cunningham) (“We have an all-

19

voluntary force, and to allow access on to our campuses is a

good thing.”).8 But as the Third Circuit explained,

“invoking the importance of a well-trained military is not a

substitute for demonstrating that there is an important

governmental interest in opening the law schools to military

recruiting.” 390 F.3d at 245 (citing Rostker v. Goldberg, 453

US. 57, 89 (1981)).

Other than commenting on the general desirability of

on-campus recruiting, neither the sponsors nor the military

proffered any evidence to show that the military was

actually having trouble recruiting lawyers or college

graduates, or that the Solomon Amendment would

materially enhance the military's recruiting results. The

Department of Defense itself actually objected to the

8 See 141 CONG. REC. E13 (daily ed. Jan 4, 1995) (statement of Rep.

Solomon) (“I am told by the Pentagon that schools across the country are

getting the message and preparing to accommodate recruiters rather than

lose their precious funding. But to pick up the stragglers who are still not

complying, further action is necessary.... Barring military recruiters is an

intrusion on Federal prerogatives, a slap in the face to our Nation's fine

military personnel, and an impediment to sound national security

policy.”); H.R. Rep. 108-443, at 3 (Mar. 23, 2004) (accompanying Ronald

Reagan Nat'l Defense Authorization Act, FY 2005, Pub. L. No. 108-375,

118 Stat. 1811) (“The committee believes that at no time since World War

Il, has our Nation's freedom and security relied more upon our military

than now as we engage in the g'obal war on terrorism. Our Nation’s all

volunteer armed services have been called upon to serve and they are

performing their mission at the highest standard. The military's ability to

perform at this standard can only be maintained with effective and

uninhibited recruitment programs.”); 151 CONG. REC. H316 (daily ed. Feb.

2, 2005) (statement of Rep. Kline) (exclusion of military recruiters

“threatens to severely damage the ability of the military to recruit the

highly qualified candidates necessary during a time of war”); 140 CONG.

Rec. E1127 (daily ed. Jun. 8, 1994) (statement of Rep. Bereuter) (“In

banning military recruiters, the universities are making wholly

inappropriate value judgments about the Armed Forces, and they

undermine the absolutely essential efforts of the Armed Forces to recruit

and retain the highest quality military force.”).

20

proposed law as “unnecessary” and “duplicative” of earlier

legislation that had enabled the Department to withhold its

own funding from any institution that prohibited military

recruiting on campus. See 140 CONG. REC. H3864 (daily ed.

May 23, 1994). And in expanding the Solomon Amendment

two years later in 1996, Representative Solomon merely

repeated the asserted generalized “need” for the changes,

without citing any evidence in support:

[RJecruiting is the key to our all-voluntary force,

which has been such a spectacular success.

Recruiters have been able to enlist such promising

volunteers for our Armed Forces by going into high

schools and to colleges, by informing young people

of the increased opportunities that an honorable

military career can provide .... That is why we

need this amendment.

142 CONG. REC. H 6887 (daily ed. Jun. 26, 1996) (statement of

Rep. Solomon).

Even more dramatically, Congress also heard no facts

and considered no alternatives in the fall of 2004, when it

passed H.R. 3966—the provision that amended the Solomon

Amendment to require expressly that colleges and

universities provide military recruiters with the same access

and support they provide to private recruiters. Throughout

the late 1990s, most law schools had provided the military

with some form of limited access, and there was and is no

reason to believe that those accommodations were

inadequate for the military's recruiting needs. Yet without

any reason to believe it was necessary, Congress proceeded

to enact the most intrusive portion of the Solomon

Amendment—the provision that requires schools to speak

for, associate with, and host military employers just as they

do employers who comply with the schools’ non-

discrimination policies.

21

The scope of the equal access provision itself confirms

that it was intended to punish schools, rather than to serve a

specific military need. If Congress had truly believed that

recruiting on campus with the school’s full assistance was

critically important~and had no acceptable alternative —it

would have compelled schools to allow the military to

recruit on campus whether or not other employers were

offered the same opportunity.

The only discussion of the 2004 equal access provision

occurred in a single floor debate in the House of

Representatives, and in a Committee on Armed Services

Report. See 150 CONG. REC. H1695, H1702 (daily ed. Mar.

30, 2004); H.R. REP. 108-443 (Mar. 23, 2004). This discussion

quite transparently revealed the true motivation behind the

provision: a desire to “reestablish the pre-eminence of the

military on our campuses across this country” and to

address the district court's decision in this litigation, which

questioned the Department of Defense's ability to demand

equal access to campuses for military recruiters on penalty

of withholding federal funds. 150 CONG. REC. H1706 (daily

ed. Mar. 30, 2004) (statement of Rep. King) (specifically

citing the instant case). As one skeptical member of

Congress recognized, Congress never answered the

question of, “Is this the best way to do it?,” with regard to

the equal access requirement. Id. at H1708 (statement of

Rep. Abercrombie). Instead, the bill was “rammed through

the Committee on Armed Services . . . without a single

hearing” and no opportunity to debate. Id. at H1709

(statement of Rep. Meehan).’

% Other members of Congress have acknowledged the jack of evidence

or findings as to the necessity for the equal access provision. 150 CONG.

REC. H1699 (daily ed. Mar. 30, 2004) (statement of Rep. Frank) (“[NJjo one

really believes and the military has not said, oh, we are being so hindered

by these recruitment restrictions that we cannot get enough people. This

is to penalize those institutions that are just standing up particularly for

the principle of nondiscrimination and particularly for the principle that

22

Moreover, the only evidentiary material proffered in

support of the 2004 “equal access” amendment consisted of

a single letter from an official of the Department of Defense.

H.R. REP. 108-443, pt. 1, at 7 (Mar. 23, 2004) (Letter from

David S.C. Chu, Under Secretary of Defense. to Hon.

Duncan L. Hunter, Chairman of Committee on Armed

Services of Mar. 16, 2004). This letter, however, did not

document any need for the equal access amendment to the

statute. Instead, it railed against “some colleges and

universities [that] remain intransigent or outright opposed

to compliance.” Id. The “particularly egregious” examples

that it offered related not to military need, nor even to

denied access, but rather to unwelcome protests: “(Military

recruiters and prospective recruits have been forced to

endure verbal abuse and harassment” at the hands of

“gauntlets of taunting fellow students and faculty impeding

the path” of potential recruits “to designated interview

rooms.” Id. Setting aside the question of protests, however

—which the 2004 provision did not address —this letter did

not even suggest that the military's recruiting effort was

disadvantaged by the institutions’ measures to

accommodate military recruiting while adhering to their

anti-discrimination policies. Thus there is no reason to

qualified members of their university communities ought not to be

discriminated against and punishing them to reinforce an unfair policy

hurts the military.”); 150 CONG. Rec. H1708 (daily ed. Mar. 30, 2004)

(statement of Rep. Abercrombie) (issue deserved full discussion, which it

had not had, and “some common sense, some common legislative sense”

to address the issue “in a manner that will resolve it under constitutional

methodology that is worthy of this body”).

10 See also 151 CONG. REC. H312 (daily ed. Feb. 2, 2005) (statement of Rep.

McGovern) ("[T]here is no lack of access to for the military on America’s

campuses, Every university that wants an ROTC program has one.

According to the Wall Street Journal, more than 52,000 college students are

enrolled in ROTC programs, up from 48,000 in 2000. Many credit feelings

of patriotism engendered by the September 11 attacks, and it comes as no

surprise that military enlistment by college graduates has also increased

since the events of September 11.”).

23

believe that Congress actually concluded —or had any basis

for concluding—that the access military recruiters were

' receiving before the “equal access” provision was

inadequate to meet military recruiting targets.

In light of this history, it is apparent that Congress did

not make any judgment at all about whether the Solomon

Amendment's intrusions on schools were necessary or even

beneficial to the military's recruiting efforts. And there is no

reason to believe that Congress considered the question

whether less burdensome measures—like the

accommodations schools made for the military in the years

before the “equal access” requirement —were insufficient to

meet the military's needs. Thus even if some deference

were appropriate in the context of a law that regulates the

conduct of civilians in civilian space, Congress made no

empirical judgments or considered choices to which this

Court may defer.

Il. Regardless of deference, this Court cannot ignore

the fact that neither the Government nor its amici

have shown that the Solomon Amendment is

necessary—and no broader than necessary—to

serve a compelling military need.

Throughout this litigation, the Government has

presented no evidence whatever showing that the Solomon

Amendment is the least restrictive means to achieve a

compelling interest, or—under the O’Brien analysis — that its

intrusion on the rights of schools “is no greater than is

essential” to serve the military's recruiting needs. O’Brien,

391 U.S. at 377. As the Third Circuit explained, “this is not a

case where the Government has presented less evidence

than might otherwise be required; here the Government has

presented no evidence.” 390 F.3d at 245 n.26 (emphasis in

original); see also id. at 235 (“The Government has failed to

proffer a shred of evidence that the Solomon Amendment

24

materially enhances its stated goal.”). And the Government

has not even argued that it cannot recruit effectively

through alternative methods that would be less burdensome

on the First Amendment rights of colleges and universities.

Id. at 242.

Whether or not this is an appropriate case for deference,

this Court cannot ignore the utter absence of factual

justification —both in Congress and in this litigation—for a

statute that intrudes so heavily on the rights of civilians. As

discussed above, even in cases where this Court has noted

that it would defer to the determinations of Congress in

military affairs, it still must ensure that the constitutional

rights of American citizens are protected. See Rostker, 453

US. at 70 (“Simply labeling the legislative decision ‘military’

. . . does not automatically guide a court to the correct

constitutional result.”). Indeed, in Rostker—upon which the

Government and its amici rely as an instructive example of

judicial deference in military affairs—this Court refused to

change its constitutional analysis simply because the

decision related to the military. Id. at 69 (rejecting the

Government's argument that a sex-based classification in

draft registration should be reviewed under only a rational

basis standard). Thus, even after explaining that deference

was appropriate in that case, the Rostker Court proceeded to

assess the registration statute carefully in terms of

Congress's purpose and the means it chose:

This is not a case of Congress arbitrarily choosing to

burden one of two similarly situated groups, such as

would be the case with an all-black or all-white, or

an all-Catholic or all-Lutheran, or an all-Republican

or all-Democratic registration. Men and women,

because of the combat restrictions on women, are

simply not similarly situated for purposes of a draft

or registration for a draft. . . . The fact that Congress

and the Executive have decided that women should

25

not serve in combat fully justifies Congress in not

authorizing their registration, since the purpose of

registration is to develop a pool of potential combat

troops.

Id. at 78-79. Here too, whether deference is appropriate or

not, the Court must still meaningfully assess the purposes of

Congress and the means it chose, and it cannot ignore the

absence of factual evidence supporting that choice.

Without specific proof—either in the legislative history

or in the record —it is far from reasonable to assume that the

military has no alternative but to demand the assistance of

law schools and universities for its recruiting efforts. As the

Third Circuit observed, the military is different from other

employers and has many options for recruiting:

Unlike a typical employer, the military has ample

resources to recruit through alternative means. For

example, it may generate student interest by means

of loan repayment programs. And it may use

sophisticated recruitment devices that are generally

too expensive for use by civilian recruiters, such as

television and radio advertisements. These methods

do not require the assistance of law school space or

personnel. And while they may be more costly, the

Government has given us no reason to suspect that

they are less effective than on-campus recruiting.

390 F.3d at 234-35 (footnote omitted).

With respect to the equal access requirement added to

the Solomon Amendment in 2004, the Government's

presumption of necessity is even more tenuous. Schools are

required by law to provide the military with contact

information for students (10 US.C. § 983(b)(2))—a

requirement that obviously puts the military at a

26

tremendous advantage over other employers in terms of the

ability to contact students directly. Particularly in light of

that requirement, there is no reason whatever to suppose

that the military needs the same sort of access and support

from colleges and law schools as would an employer that

may not be able to contact students directly.

It is also far from reasonable to assume that this Nation's

armed services require the same kind of introduction to

students as would a small law firm or a firm in a distant

city—about which students may be completely unaware.

And even if a particular group of students may be unaware

that the militar offers employment opportunities in their

chosen field, there is no reason to conclude that a mailing, a

poster, or a campus newspaper advertisement would not be

sufficient to alert them. Many new lawyers may be

predisposed to seek out military service after law school

because they or members of their families have served

previously, either in the active military or in the Reserve

Office Training Corps. The Army, for example, has a

program through which active duty commissioned officers

may attend law school “at government expense if funding

permits.”"' For these lawyers, there is no reason to believe

that on-campus recruiting would make any difference at all.

Further, once students have been made aware of the

opportunities for military service in their respective fields, it

is unlikely that having to conduct the interviews themselves

at a different location would materially impair the results of

the military's recruiting effort. Off-campus recruiting may

even be beneficial to the military, a0 the Thied Clocait noted.

in that it removes potential recruiters and recruits from the

protests that often accompany military recruiters when they

"| See ArmyStudyGuide.com, Army Programs: The Funded Legal

Education Program, available at http:/ / www .armystudyguide.com

/ programs /info/flep.htm.

27

actually conduct their interviews on campus. See 390 F.3d

at 245.

Evidence in the record underscores the lack of any need

for the “equal access” amendment in 2004. From the time

that the Solomon Amendment was enacted in 1994 until -

2001, when the military began to demand “equal access,”

military recruiting did not suffer from law schools’ refusal

to give the military the exact same access it would give to

other employers. Indeed, military recruiters routinely

thanked law schools for the access and assistance they were

granted and marveled at having to turn qualified applicants

away. See, e.g., Letter from Steven H. Levin, US. Army

Judge Advocate Recruiting Officer, to Irene Dorzback,

Assistant Dean of New York University School of Law (Nov.

3, 1998), at J.A. at 169. (“Competition has become very keen

in the past few years for both our intern and our JAG

attorney positions. Unfortunately, that means some very

qualified applicants will not be selected for a position.”).

In briefing in this Court, various amici have attempted

to fill the void in the record left by the Government's failure

of proof, though only with anecdotal and similarly

conclusory evidence.'2? None of this evidence supports the

conclusion that the military has no effective alternatives for

recruiting—or in other words, that forcing colleges and

universities to host, support, and speak for military

recruiters is necessary for the military to meet its needs.

For example, the Judge Advocates Association asserts

that the on-campus interview “is the most critical part of the

Judge Advocate recruiting process,” (Brief of Amici Curiae

Judge Advocates Association at 10-11 [hereinafter “Judge

? See, ¢.g., judge Advocate’s Br. at 5-20, 24-30; Eagle Forum Br. at 8-10,

15-16; Pombo Br. at 10-12; Brief of Amici Curiae Adm. Charles S. Abbott

et al. at 7-10, 14-20, 27-30 Al-A10.

Advocate’s Br.”] (citing Declaration of Rear Admiral Jeffrey

L. Fowler, U.S. Navy)), which was submitted in support of

the Government's application for a stay of the Third

Circuit's decision.“ At most, however, this Declaration

indicates that more than 50% of the Navy JAG Corps’ new

hires each year “had their first meeting with Navy

personnel during am on-campus interview.” Id. at 16

(quoting Rear Admiral Jeffrey L. Fowler, U.S. Navy). It does

not establish that these applicants would not have joined

Navy JAG without an on-campus interview or that the

Navy had no other way to reach these students.

For all these reasons, there is no reason to conclude that

the Solomon Act is “essential”—or even beneficial —to

military recruiting. Indeed, the lack of evidence presented

by the Government on this point further supports the

conclusion that the Solomon Amendment was the result of

rhetoric, rather than real military need. And without a real

and compelling justification for the Solomon Amendment's

intrusion on First Amendment liberties, it cannot be upheld.

8 Although the Judge Advocates Association also relies on other

declarations of military officers, those declarations are no more specific

and similarly do not provide evidence in support. See Judge Advocate’s

Br. at 12 (quoting Declaration of Brigadier General Walter E. Gaskin,

United States Marine Corps) (“’Access to law students that is inferior to

that provided other employers precludes the [military] from being able to

reach potentially interested students in the manner that is most

convenient and attractive to the students."”); Id. at 13 (citing Declaration

of Major General Thomas J. Romig, U.S. Army) (refusal to enforce the

Solomon Amendment will “ultimately result in accession of less talented

Judge Advocates”); id. (citing Amended Declaration of Major General

Jack L. Rives, U.S. Air Force) (“Each year the United States Armed Forces

must recruit hundreds of Judge Advocates in order to effectively defend

the nation”); Id. at 19 (quoting Declaration of Under Secretary of Defense

for Personnel and Readiness Dr. David S. C. Chu) (Developing, funding,

and implementing alternative methods of recruiting would unavoidably

take time, and we do not have the luxury of living with impaired

recruiting while the process plays out.”); Rear Admiral

Jeffrey L. Fowler, United States Navy) (“[T]he on-campus interview .. . is

the most critical part of this process.”).

For all the reasons discussed above and in the

Respondents’ briefs, the judgment of the Third Circuit

should be affirmed.

Respectfully submitted.

SHARRA E. GREER LINDA T. COBERLY

KATHI S. WESTCOTT Counsel of Record

SERVICEMEMBERS LEGAL WINSTON & STRAWN LLP

DEFENSE NETWORK 35 West Wacker Drive

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WINSTON & STRAWN LLP JENNIFER GARBER

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SEPTEMBER 2005