Bush administration attorneys said last Friday they will ask the Supreme Court to reverse a federal appellate panel’s ruling that cleared the way for Harvard Law School to reinstate its policy restricting military recruitment on campus.

The government’s move is the latest development in a year-and-a-half-long legal battle over the 1996 Solomon Amendment, under which the Pentagon can block federal funding to universities that limit military recruiters’ access to students.

Harvard Law School Dean Elena Kagan announced in November that the military could not use the law school’s recruiting resources until the Pentagon signed a pledge promising not to discriminate against gay and lesbian employees. The military, which discharges openly gay servicemen under its “don’t ask, don’t tell” policy, refused to sign the pledge.

Kagan’s decision came after a panel of judges from the Philadelphia-based Third Circuit Court of Appeals voted 2-to-1 that the 1996 statute is unconstitutional because it violates law schools’ First Amendment right to express their opposition to discrimination against gays and lesbians.

In a motion filed last Friday to delay the enforcement of the panel’s decision, Bush administration lawyers said that the Supreme Court is “highly likely” to review the Third Circuit’s ruling—with a “serious possibility” that the justices will uphold the constitutionality of the Solomon Amendment.

Former solicitor general Charles Fried said the justices are likely to review the panel’s ruling.

“The Supreme Court does not like to leave a decision out there that says an act of Congress is unconstitutional,” said Fried, who is the Beneficial Professor of Law.

The Third Circuit panel’s ruling came in a suit filed by a coalition of law schools called the Forum for Academic and Institutional Rights (FAIR) along with a group of legal scholars and several individual plaintiffs. Harvard is not part of the coalition.

Other challenges to the Solomon Amendment, including lawsuits filed by students and professors at Yale and University of Pennsylvania, are slowly crawling through the district courts. A member of FAIR’s legal team, Sharon Frase of the firm Heller Ehrman, said the Supreme Court may wait for rulings in the other cases before acting on the Bush administration’s appeal.

Justices frequently look for a conflict in the lower courts before agreeing to review an issue, said Visiting Professor of Law Cass R. Sunstein ’75. “But on the other hand, this is a case of evident national importance, and if the U.S. government wants the Court to hear it, the Court is often attentive to that fact,” Sunstein said.

Normally, the loser of an appellate panel ruling would ask the full circuit court to review the decision, but a majority of active judges on the Third Circuit recused themselves from the FAIR suit. Frase speculated that several members of the Third Circuit may have conflicts of interest due to affiliations with law schools in FAIR.

‘NOT OPEN OR SHUT’

In its November ruling, the appellate panel’s two-judge majority ruled that the government had provided no evidence to prove that the Solomon Amendment was necessary for the military to fill the ranks of its Judge Advocate General (JAG) office, the armed services’ legal wing.

The Bush administration attorneys last Friday presented a flurry of declarations to disprove the panel’s finding, including statements from several generals who said that on-campus interviewing is the only way for JAG to recruit top law school graduates.

Bush administration lawyers said in that motion that the justices are unlikely to second-guess the military’s own conclusion that on-campus recruiting is a national security imperative.