The Volokh Conspiracy - More on the HLS Solomon Argument:

A Harvard Law Student cc'ed me on a letter submitted to the Harvard Crimson regarding the story referenced earlier today on FAIR v. Rumsfeld.

To the Editor:

Re "Harvard Profs' Brief Could Still Sway Court" (Dec. 8, 2005):

Rather than putting forth a Constitutional argument against the Solomon Amendment, as FAIR did at oral arguments on December 6th, a group of Harvard Law professors would instead have the Supreme Court decide the case on statutory grounds. In their brief, they claim that "[m]ilitary recruiters are subject to exactly the same terms and conditions of access as every other employer. When other recruiters have failed to abide by these tenets, they have been excluded." In other words, they claim that the military is given equal access as required under the Solomon Amendment — but the military discriminates against gays, and therefore its access is revoked, as it would be for any other employer that discriminates.

This would be an interesting legal argument — if it were not demonstrably false.

The Law School's non-discrimination policy simply states: "Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy."

Yet in direct violation of this policy, the Law School's Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week's news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that " [t]he individual [selected] must be a member of a racial or ethnic minority group." Another fellowship restricts eligibility to "persons who are... African American, Latino, Native American, Alaskan native, Asian or Pacific Islander."

The non-discrimination policy contains no exception that would permit discriminatory affirmative action practices. Accordingly, the military's discrimination is held to a tougher standard than any other employer, or so it seems. Under the rubric of "equal access," military discrimination cannot be held to a higher standard than, say, racial discrimination under the non-discrimination policy. The Law School cannot have its cake and eat it too, and so it destroys the arguments of its own academics.

Elliott Marc Davis, HLS'07

The larger point here seems to me to be a sound one. It is not accurate to say that Harvard, or other colleges and universities have a blanket policy opposing discrimination. Rather, colleges and universities routinely balance the goal of nondiscrimination against other educational and social goals. (Leaving aside the question of whether affirmative action should have the moniker "discrimination"). Indeed, the right of universities to undertake this balance as they see fit was one of the central premises of the Grutter case, and one which is captured in the fellowship announcements described above.

So in fact Harvard Law School does not have a policy against discrimination. Rather, they (like almost every other college or university) seem to have a presumption of nondiscrimination, but which is rebuttable (and frequently rebutted) by other offsetting educational and social policies. Dartmouth (a school with which I am obviously familiar) similarly has a principle of nondiscrimination but also has a "Women in Science" program that is closed to male students. Women's soccer and softball teams are open only to women. So the argument boils down not to the argument that Harvard has an uncompromising nondiscrimination principle, because they compromise on it all the time. Rather, it is that they choose not to make an exception with respect to military recruiters that they make for other groups, presumably on the basis that the educational and other policies advanced by equal treatment of military recruiters do not outweigh their assessment of the strength of their nondiscrimination norm. Leaving aside constitutional equal protection questions, Harvard certainly may decide that offering and allowing the advertisement of fellowships that exclude certain groups from eligibility is outweighed by larger educational goals, but that allowing the military to recruit does not offer sufficient educational and social benefits. It is certainly Harvard's right to balance those policies as they see fit, but that doesn't obscure the fact that they are in fact balancing nondiscrimination as one of many prinicples and policies, not applying a blanket principle.

The law schools argument that the military is requesting an exception to an otherwise undbending principle thus seems somewhat specious to me. This does not appear to be a question of an unprecedented departure from a deeply-held principle, but rather of the routine balancing of the principle against many other educational goals which lead to frequent deviations from the principle in numerous instances. Thus, the statutory argument appears to collapse--instead, we simply have the question about whether or not the federal government is permitted to offer money to induce the schools to make an additional exception to the nondiscrimination principle for the benefit of military recruiters that the school routinely makes to advance any number of other policies, from admissions to fellowships.

Harvard has the right to balance the policies as they see fit, and to make exceptions to the general principle (or not make exceptions to it) as they see fit. And assuming there are no constitutional limits, it seems to me that Congress also has the right to balance the policies as they see fit, and to balance them differently if they so choose, and offer money to go along with it to induce the schools to adopt Congress's preferred balance rather than their own. The offer of money (and presumably the educational benefits that the money generates) is designed to put more weight on the scale in favor of the overall benefits of permitting the military to recruit on campus, and that is precisely the point--to influence the way in which universities strike the policy balance between their avowed principles and the routine exceptions that they make to those principles. But to say that they have an unwavering principle of nondiscrimination, and that therefore the statute doesn't apply to them, seems inaccurate to me.

	[Todd Zywicki, December 9, 2005 at 10:10am] Trackbacks More on the HLS Solomon Argument: A Harvard Law Student cc'ed me on a letter submitted to the Harvard Crimson regarding the story referenced earlier today on FAIR v. Rumsfeld. To the Editor: Re "Harvard Profs' Brief Could Still Sway Court" (Dec. 8, 2005): Rather than putting forth a Constitutional argument against the Solomon Amendment, as FAIR did at oral arguments on December 6th, a group of Harvard Law professors would instead have the Supreme Court decide the case on statutory grounds. In their brief, they claim that "[m]ilitary recruiters are subject to exactly the same terms and conditions of access as every other employer. When other recruiters have failed to abide by these tenets, they have been excluded." In other words, they claim that the military is given equal access as required under the Solomon Amendment — but the military discriminates against gays, and therefore its access is revoked, as it would be for any other employer that discriminates. This would be an interesting legal argument — if it were not demonstrably false. The Law School's non-discrimination policy simply states: "Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy." Yet in direct violation of this policy, the Law School's Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week's news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that " [t]he individual [selected] must be a member of a racial or ethnic minority group." Another fellowship restricts eligibility to "persons who are... African American, Latino, Native American, Alaskan native, Asian or Pacific Islander." The non-discrimination policy contains no exception that would permit discriminatory affirmative action practices. Accordingly, the military's discrimination is held to a tougher standard than any other employer, or so it seems. Under the rubric of "equal access," military discrimination cannot be held to a higher standard than, say, racial discrimination under the non-discrimination policy. The Law School cannot have its cake and eat it too, and so it destroys the arguments of its own academics. Elliott Marc Davis, HLS'07 The larger point here seems to me to be a sound one. It is not accurate to say that Harvard, or other colleges and universities have a blanket policy opposing discrimination. Rather, colleges and universities routinely balance the goal of nondiscrimination against other educational and social goals. (Leaving aside the question of whether affirmative action should have the moniker "discrimination"). Indeed, the right of universities to undertake this balance as they see fit was one of the central premises of the Grutter case, and one which is captured in the fellowship announcements described above. So in fact Harvard Law School does not have a policy against discrimination. Rather, they (like almost every other college or university) seem to have a presumption of nondiscrimination, but which is rebuttable (and frequently rebutted) by other offsetting educational and social policies. Dartmouth (a school with which I am obviously familiar) similarly has a principle of nondiscrimination but also has a "Women in Science" program that is closed to male students. Women's soccer and softball teams are open only to women. So the argument boils down not to the argument that Harvard has an uncompromising nondiscrimination principle, because they compromise on it all the time. Rather, it is that they choose not to make an exception with respect to military recruiters that they make for other groups, presumably on the basis that the educational and other policies advanced by equal treatment of military recruiters do not outweigh their assessment of the strength of their nondiscrimination norm. Leaving aside constitutional equal protection questions, Harvard certainly may decide that offering and allowing the advertisement of fellowships that exclude certain groups from eligibility is outweighed by larger educational goals, but that allowing the military to recruit does not offer sufficient educational and social benefits. It is certainly Harvard's right to balance those policies as they see fit, but that doesn't obscure the fact that they are in fact balancing nondiscrimination as one of many prinicples and policies, not applying a blanket principle. The law schools argument that the military is requesting an exception to an otherwise undbending principle thus seems somewhat specious to me. This does not appear to be a question of an unprecedented departure from a deeply-held principle, but rather of the routine balancing of the principle against many other educational goals which lead to frequent deviations from the principle in numerous instances. Thus, the statutory argument appears to collapse--instead, we simply have the question about whether or not the federal government is permitted to offer money to induce the schools to make an additional exception to the nondiscrimination principle for the benefit of military recruiters that the school routinely makes to advance any number of other policies, from admissions to fellowships. Harvard has the right to balance the policies as they see fit, and to make exceptions to the general principle (or not make exceptions to it) as they see fit. And assuming there are no constitutional limits, it seems to me that Congress also has the right to balance the policies as they see fit, and to balance them differently if they so choose, and offer money to go along with it to induce the schools to adopt Congress's preferred balance rather than their own. The offer of money (and presumably the educational benefits that the money generates) is designed to put more weight on the scale in favor of the overall benefits of permitting the military to recruit on campus, and that is precisely the point--to influence the way in which universities strike the policy balance between their avowed principles and the routine exceptions that they make to those principles. But to say that they have an unwavering principle of nondiscrimination, and that therefore the statute doesn't apply to them, seems inaccurate to me.