Take a look at Professor John F. Banzhaf III's stinging commentary in the March 24, 2006 issue of the The Chronicle of Higher Education on the amicus briefs filed by law professors in the Solomon Amendment case (text reproduced below). As he says, not one of their constitutional-law arguments swayed the Court.
When Law Professors Don't Know the Law
By JOHN F. BANZHAF III
The Supreme Court's unanimous ruling upholding the Solomon amendment, which allows the federal government to deny funds to colleges that don't give military recruiters the same access to their campuses as other employers, suggests that many constitutional-law professors should receive failing grades in their own field. Not only were they unable to convince conservative members of the court of their position, but even the most-liberal justices rejected their arguments.
Those scholars should probably also receive low grades in litigation. They pursued a case that has backfired — and, in fact, now provides a constitutional green light for the government to intrude even more upon the activities of higher-education institutions.
I say this as someone who is no friend of the Solomon amendment. In a letter to the editor in The Chronicle (February 6, 2004), I proposed a lawsuit aimed at undermining the statute's earlier version (it has subsequently been amended) under the District of Columbia's Human Rights Act, and I share the concerns of many of my colleagues about outside pressures seeking to influence our campus policies. My law school is also one of the members of FAIR, an organization of law schools that brought the suit to the Supreme Court on the grounds that the Solomon amendment forces law schools to convey the military's message and helps an employer that discriminates against gay people in hiring. Nevertheless, I am critical of those who promoted the recent litigation — as was the Supreme Court itself.
Indeed, in Rumsfeld v. Forum for Academic and Institutional Rights, the court appeared to go out of its way to admonish the many leading constitutional scholars who orchestrated the legal challenge. First, the justices singled out the amicus briefs by law professors from Columbia University and Harvard University for criticism. Second, they used strong language to reject all of FAIR's constitutional arguments. And finally, they broadly ruled that even institutions that choose to keep military recruiters off the campus by giving up federal support could be required to admit such recruiters — and the government could, without violating the Constitution, perhaps take other steps that colleges may find even more objectionable.
Although Supreme Court rulings usually do not even acknowledge "friend of the court" briefs, the Solomon decision began by referring to "certain law professors participating as amici" (40 Harvard Law School professors) and "56 Columbia Law School Faculty Members as Amici Curiae." It noted that those scholars had offered an interpretation of the statute that the court ruled "would render it a largely meaningless exercise." It said the meaning the professors suggested was contrary to the language of the statute, and would have resulted in a "legislative change [that] had no effect." Ironically, the brief that the Harvard lawyers drafted was not only rejected but ridiculed by the six justices who had gone to law school there, as well as by the other two justices who participated. (Justice Samuel A. Alito Jr. did not take part in the ruling, as he joined the court only last month.)
The unanimous court then went on to rather summarily reject the three different free-speech arguments that FAIR put forth, as well as another argument based upon "expressive association." The court said, in summary, that "FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect." Requiring that military recruiters have access to campuses, the justices ruled, is not the same as requiring colleges to say they support the military's policies. As Chief Justice John G. Roberts Jr. wrote for the court, "The Solomon amendment neither limits what law schools may say nor requires them to say anything."
Perhaps the court's most crucial conclusion was that "the First Amendment would not prevent Congress from directly imposing the Solomon amendment's access requirement" on a university, even if the institution was willing to give up federal support or did not receive any federal support. Under that legal principle, Congress may also be able to impose on colleges other requirements that they may deem even more disagreeable — mandating, for example, that they permit military-recruiting booths or firearms on their campuses, provide equal access for goods from companies that students want the institution to boycott, or make morning-after pills or other abortion or contraceptive aids available to students even if faculty members oppose such actions.
The court also noted that "funds provided for student financial assistance are not covered" by the Solomon amendment. That at least suggests that Congress could increase the coercive effect by amending the statute to cut off funds for students, in addition to funds for the institution, if appropriate access isn't granted.
How could so many nationally known law professors at top law schools like those at Harvard, Yale, and Columbia Universities — and my own law school — have been so wrong in how they chose to challenge the Solomon amendment and in asserting that the statute violated the First Amendment under no less than four different constitutional theories? Every single justice who participated — liberal, conservative, and middle-of-the-road — ruled without exception that every legal theory the law professors advanced was without merit.
If all those top constitutional scholars honestly believed the arguments that they publicly presented — that the Solomon amendment was an unconstitutional infringement on free speech and that the Supreme Court would strike it down — they were so clearly mistaken that it casts some doubt on their competence. To incorrectly predict one Supreme Court decision is not unusual, but when all of their different constitutional arguments fail to sway even one justice (and even to the point of writing a concurrence), red flags should go up.
On the other hand, if the law professors knew that their constitutional arguments had virtually no chance of being accepted by the high court, there is a certain hypocrisy in making those claims over and over again in public, including perhaps in their classes, and even a reckless disregard of the consequences of bringing a constitutional challenge that could easily backfire — which it did.
As Oliver Wendell Holmes reminded us, "law is nothing more pretentious than the prediction of what courts will in fact do," and law professors are supposed to be learned in the law and to teach it to law students. In this case, which everyone knew would go all the way to the Supreme Court, the constitutional "law" in question is a prediction of what the Supreme Court would do when it dealt with the issue. It is not, and should not be, a statement of what law professors teaching constitutional law, no matter how learned, think it should be or how they hope it just might be, based upon their concerns about the underlying interests of gay people or their desire to control access to their campuses.
Instead, they owe their law students, and indirectly the public, the benefit of their best efforts to predict how the justices would rule. When all of their predictions turn out to be so wrong, it only leads credence to the arguments that we law professors live in ivory towers oblivious to the real world, or that our publicly expressed opinions are based more on liberal guilt than hard-nosed and meaningful real-world analysis.
John F. Banzhaf III is a professor of public-interest law at the George Washington University Law School.
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