Harvard, others challenge amendment with brief

Harvard and six other universities filed a brief to the U.S. Supreme Court last week (Sept. 21), challenging a law that requires universities to provide military recruiters access to campus that is “equal in quality and scope” to other recruiters.

The action supports an appeals court ruling issued last November that said the 1996 Solomon Amendment is unconstitutional on First Amendment grounds. The Supreme Court has stayed the lower court’s ruling while it reviews the case.

“In filing the brief, we are opposing a coercive law intended to enforce a corrosive policy,” said Harvard President Lawrence H. Summers.

The conflict stems from the military’s “don’t ask-don’t tell” policy that bars openly gay members. The policy has created conflict at Harvard Law School, which permits only those recruiters that adhere to specified nondiscrimination requirements to use the school’s Office of Career Services (OCS). The military is unable to meet the nondiscrimination requirement because of “don’t ask-don’t tell.” Historically, military recruiters recruited on the Law School campus at the invitation of the Harvard Law School Veterans Association.

Under the threat of the loss of federal funds across the University, however, the Law School last week again opened its Office of Career Services to military recruiters.

Law School Dean Elena Kagan said in a statement posted on the Law School Web site that she regrets changing the policy, but that it is important to preserve federal funding to the University.

“I have said before how much I regret making this exception to our anti-discrimination policy. I believe the military’s discriminatory employment policy is deeply wrong – both unwise and unjust,” Kagan said. “The importance of the military to our society, and the great service that members of the military provide to all the rest of us, heightens, rather than excuses, this inequity.”

Summers said the Law School made the appropriate decision under the circumstances.

“The decision is prudent given the potential consequences to the University’s research and other activities,” Summers said. “The Law School and the University share a deep and enduring commitment to the principles of nondiscrimination and equal opportunity for all persons.”

A group of Law School professors, including Kagan, also filed a brief with the Supreme Court last week supporting the Third Circuit Court of Appeal’s ruling in the case.

Because of the conflict between the Law School’s 1979 anti-discrimination policy and the military’s “don’t ask-don’t tell” policy, for many years the military was not permitted to use the Law School’s Office of Career Services, although it was able to recruit on campus at the invitation of student groups.

That changed in 2002, when the Defense Department said it would enforce the provisions of the Solomon Amendment against schools that deny its recruiters equal access to its students. Under the threat of the loss of federal funds, then-Law School Dean Robert Clark created an exception for the military from the School’s anti-discrimination policy. Kagan continued that exception until last spring, after the Third Circuit Court of Appeals had ruled that the Solomon Amendment was unconstitutional.

Last spring, the Law School returned to the policy of allowing military recruiters at the invitation of student groups but without use of the OCS. The recent reversal of the policy came after the Supreme Court stayed the lower court’s decision and the Defense Department again threatened to withhold federal funding.

A Supreme Court decision in the case is expected later this year.

“The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation,” Kagan said. “And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.”