September 10, 2003


To: Deans of Member and Fee-Paid Schools
Members of the House of Representatives
From: Mark V. Tushnet
Subject: Proposal that AALS Become the Plaintiff in Litigation Challenging the Constitutionality of the Solomon Amendment


As Carl Monk's memorandum dated August 19, 2003 indicates, the Executive Committee recently decided unanimously that the AALS would not file suit to challenge the constitutionality of the Solomon Amendment. Immediately following this decision I spoke at the Deans' Breakfast at the American Bar Association Annual Meeting and provided my reasons for voting not to participate as plaintiff in any such litigation. Because a number of you were not present at that meeting and the AALS office has received additional inquires about this decision, I am sending this memorandum - which summarizes, as best as I can recall, what I said at the breakfast -- to you.

Each member of the AALS Executive Committee has her or his own reasons for voting not to participate as the lead plaintiff in litigation challenging the Solomon Amendment, and what follows are simply the reasons one member - me - had.

I was concerned about several things. First, the version of the challenge that has the greatest likelihood of success rests on the argument that the Solomon Amendment interferes with a member law school's academic freedom in defining its mission for itself, a mission that might of course include non-discrimination policies manifested in decisions regarding making the law school's career service facilities available to employers. Yet, it seemed to me a bit awkward for the Association to present a challenge in that form (although the Association undoubtedly has standing to do so).

The awkwardness is two-fold. (1) As the lead plaintiff, the Association would be subject to discovery regarding its knowledge of the choices made by member schools in their exercises of their academic freedom. That discovery, it seemed to me, was likely to be intrusive and time-consuming for the Association's staff. (2) Probably more important to me, I believe that there is some tension between the Association's assertion of a member school's right of academic freedom and the fact that many member schools adopted the policies at issue under the Solomon Amendment in response to the Association's interpretation of its non-discrimination policy. There's no technical problem here, but only an awkwardness: Putting it bluntly (as the defendants in litigation would), how can the Association assert that its member schools have made academic freedom judgments when the policies at issue were adopted because of pressure from the Association, not because of member schools' own reflection on their missions? (Again, I believe that there are answers within a litigation context available to this question, which is in any event a bit misleading, but it indicates the awkwardness with which I was concerned.) I should note that the academic freedom claim made by a member school in its own name is somewhat easier to make, although again the interaction between the school's adoption of the policy at issue and AALS membership requirements would complicate the litigation's strategic posture.

Second, any litigation against the Solomon Amendment is likely to be difficult on the merits, and therefore likely to involve the Association - and, here, its officers more than the staff - in close supervision of the positions taken. The litigation would have to take on two difficult issues, the scope of Congress's spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress's judgments in matters involving the military forces. It is not impossible to succeed in those challenges, but the arguments are difficult and complex, and it was not clear to me that it would be a valuable expenditure of AALS officers' time to supervise the development of such arguments. My own judgment was that we would do better by our gay, lesbian, and bisexual students to continue to encourage member schools to engage in ameliorative programming and other efforts in response to the effects of the Solomon Amendment. (It also seemed to me that a direct challenge to the military's discriminatory employment policies probably has a greater prospect of success, at least to the extent that such a challenge would have to take on only one - the deference to military judgments - of the two difficult issues.)

My final concern involved timing. Any lawsuit challenging the Solomon Amendment is likely to be pending as Congress considers the reauthorization of the Higher Education Act, which by all accounts is going to be a difficult legislative process from the point of view of universities (and law schools). The mere existence of a lawsuit, it seemed to me, was likely to further complicate the process by inviting legislative responses that would, in my view, divert attention from the larger issues that universities and their components should focus on. Some members of Congress would respond to a lawsuit by attempting to write into the legislation the expansive interpretation of the Solomon Amendment that the Department of Defense currently favors, an interpretation that seems vulnerable to challenge as a matter of administrative law; others might respond by attempting to remove law students from the category of students eligible for federal financial assistance. (The latter seemed to me particularly relevant to a lawsuit brought by the Association rather than by an individual law school.) These responses might occur whenever litigation takes place, but the reauthorization bill provides a convenient vehicle for members of Congress to attach them to. Whatever the prospects of success of such proposals, it seemed to me questionable for the Association to initiate litigation at this time.

cc:    AALS Executive Committee



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