When radical law school professors and administrators created the Forum for Academic and Institutional Rights (FAIR) to permit them to sue then-Secretary of Defense Donald Rumsfeld anonymously to challenge the constitutionality of the Solomon Amendment, which seeks to ensure the ability of military recruiters to appear on campus, the Bush Administration responded quickly and aggressively. When FAIR filed a lawsuit in New Jersey federal district court, federal lawyers vigorously defended the constitutionality of the law, which, although enacted by overwhelming margins in both Houses of Congress in 1996, was not enforced until after September 11, 2001.

The district court denied FAIR’s motion for an injunction; however, a three judge panel of the U.S. Court of Appeals for the Third Circuit, by 2-1, ruled that the Solomon Amendment was unconstitutional and barred its enforcement. Federal lawyers could have returned to the district court for a ruling on the merit; instead, denied the ability to seek en banc review at the Third Circuit—too many judges had recused themselves—they asked the Supreme Court to hear the case despite its preliminary footing. The Solomon Amendment is too important, they reasoned, to allow the preliminary injunction to stand, and perhaps to spread to other federal circuits, for the years necessary to take a ruling on the merits to the Supreme Court.

Arguments took place in December 2005 and it was at once clear that FAIR was going to take a beating notwithstanding that the nation’s top law schools and professors had filed friends of the court briefs in its behalf. Sure enough, in March 2006, the Court ruled 8-0; the Solomon Amendment is constitutional. One constitutional challenge remained; a Connecticut federal district court had ruled in favor of Yale Law School professors. Curiously, the U.S. Court of Appeals for the First Circuit did not dismiss the case summarily by relying on the Supreme Court’s March ruling. Nonetheless, in September 2007, the Second Circuit ruled the professors’ claims either were “lacking in merit” or had been rejected by the Supreme Court.

Meanwhile, in July 2007, the Yong America’s Foundation (YAF), a non-profit group active on college campuses, sued Secretary of Defense Robert Gates demanding that he enforce the Solomon Amendment against the University of California at Santa Cruz (UCSC), which, for three years running, had allowed protests and near riots by professors and students to drive military recruiters from the campus. UCSC’s antics were known to the Department of Defense (DOD); not only had they made national news, the U.S. Army Recruiting Battalion Commander for UCSC’s region had informed DOD of them and urged that it withhold the more than $80 million in federal funds UCSC receives annually.

Given the vigor with which federal lawyers had defended the Solomon Amendment, many assumed that DOD would acknowledge its duty to enforce it against the UCSC and its intent to do so. Instead, the first filing by federal lawyers was -- not an “answer,” which would have allowed the case to proceed to the merits but -- a motion to dismiss. Federal lawyers raised a host of procedural barriers to YAF’s lawsuit, the worst of which was their embrace of the UCSC’s claim that the recruiters’ inability to appear on campus was not the UCSC’s fault! It “complied with. . . the Solomon Amendment,” said the UCSC, but “individuals or groups” exercising their “right. . . to hold a legal and nonviolent protest” drove recruiters away.

In their motion, federal lawyers echoed these sentiments, arguing, first, that the case may not proceed in the absence of the “third parties” who had caused YAF’s injuries, that is, the protesting “individuals or groups,” and second, that withholding $80 million from the UCSC will not ensure the ability of recruiters to appear on campus. A ruling on the motion is likely this spring; however, one thing is sure. After years defending the Solomon Amendment, federal lawyers have now handed radical campuses the way to escape its enforcement.