“It’s likely that some of the justices will be highly uncertain that the lower court got it right,” Sunstein said.
But Fried said that if the Solomon Amendment suit reaches the Supreme Court, “the case is not open or shut for either side.”
Fried said the Court’s 1987 ruling in South Dakota v. Dole, which held that the federal government could reduce highway funding to states that refused to impose a 21-year-old minimum drinking age, suggested that Congress could not impose unduly coercive penalties for noncompliance.
If the Pentagon found Harvard Law School to be in violation of the 1996 statute, it could cut support to all branches of the University from nearly every federal agency, amounting to more than $400 million annually in lost funds for Harvard—a penalty that the Court might deem “excessive,” Fried said.
As solicitor general in 1987, Fried oversaw the federal government’s legal effort in the South Dakota case.
BUYING TIME
Unless it rules in favor of the Bush administration’s motion, the Third Circuit will tell a district judge to suspend enforcement of the Solomon Amendment.
Currently, the 1996 statute is technically still on the books, Frase said—although it would be unlikely for the Pentagon to take any action against Harvard Law School—the only institution so far to bar recruiters from campus in response to the Third Circuit ruling—until the FAIR suit is resolved.
The Bush administration’s motions could enable military recruiters to maintain their campus presence when the spring recruiting season kicks off at law schools nationwide next month.
FAIR President Kent Greenfield, a professor of law at Boston College, called for prompt action to suspend the 1996 statute.
“Every day that the Solomon Amendment is in force is another day in which First Amendment rights are being violated,” Greenfield said yesterday.
The Justice Department was closed yesterday due to the inauguration, so Bush administration attorneys could not be reached for comment.
—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.