Harvard Law To Cooperate With Military
Recruiters
The Crimson
By DANIEL J. HEMEL and JAVIER C. HERNANDEZ
Crimson Staff Writers September 20,2005
Harvard Law School will actively cooperate with military recruiters this
fall, despite the Pentagon's refusal to sign the school's
nondiscrimination pledge, Dean Elena Kagan announced this evening.
Kagan's announcement marks a reversal of her November 2004 decision to
bar Pentagon recruiters from using the law school's Office of Career
Services. For most of the last 26 years, the office has only provided its
resources to recruiters who promise not to discriminate against gay and lesbian
employees and job applicants. The Pentagon's "don't ask,
don't tell' policy prohibits gays and lesbians from serving openly
in the military.
In an e-mail to students and faculty this evening, Kagan wrote that the
Pentagon had notified the University this summer that it would withhold most
federal grants to Harvard unless the Law School altered its policy to allow
military recruiters access to the resources of the career services office.
Harvard receives more than $400 million per year in federal grants.
Meanwhile, University President Lawrence H. Summers said in a statement
tonight that Harvard will file a friend-of-the-court brief tomorrow urging the
Supreme Court to invalidate the Solomon Amendment, the statute passed by
Congress in 1994 that allows the secretary of defense to block federal funds to
universities that deny military recruiters "equal access' to
campuses.
"The Law School and the University share a deep and enduring
commitment to the principles of nondiscrimination and equal opportunity for all
persons,' Summers said.
Summers also said that he agreed with Kagan's move to grant Pentagon
recruiters an exemption from the nondiscrimination policy.
"This decision is prudent given the potential consequences to the
University's research and other activities,' he said.
Approximately 40 Harvard professors—including Kagan—have signed
a separate brief urging the high court to overturn the Solomon Amendment, said
Smith Professor of Law Martha L. Minow.
A federal appellate panel in Philadelphia ruled last year that the Solomon
Amendment "requires law schools to express a message that is incompatible
with their educational objectives' and therefore violates the
schools' free-speech rights. The panel suspended the enforcement of the
amendment.
But the panel consisted of judges from the Third Circuit Court of Appeals,
and its ruling did not make clear whether the Solomon Amendment still applied
outside the Third Circuit—which includes Delaware, New Jersey,
Pennsylvania, and the U.S. Virgin Islands.
The ruling came in response to a lawsuit filed by the Forum for Academic and
Institutional Rights (FAIR), a coalition of more than two dozen law schools
that oppose the Solomon Amendment. Harvard is not a member of FAIR, and Summers
has said that the University will not file a suit against the federal
government challenging the Solomon Amendment.
The Supreme Court announced in May that it will review the Third
Circuit's decision later this year, when it is expected to offer the
first definitive interpretation of the statute.
With Harvard facing the potential loss of its federal grants, amounting to
15 percent of its total budget, Kagan wrote in her e-mail, "I regret
making this exception to our antidiscrimination policy' and reiterated
her opposition to the "don't ask, don't tell'
protocol.
"I believe the military's discriminatory employment policy is
deeply wrong—both unwise and unjust. And this wrong tears at the fabric
of our own community by denying an opportunity to some of our students that
other of our students have,' she wrote.
CAMPUS REACTS
Before making her policy reversal public today, Kagan attended a meeting
last night of the Law School's gay, lesbian, bisexual, and transgender
student group, Lambda, to explain her decision.
Lambda President Jeffrey G. Paik '03 released a statement tonight
calling the Department of Defense's enforcement of the Solomon Amendment
"reprehensible,' but applauding Kagan for "the courageous
action she took last November.'
Lambda's treasurer, Adam R. Sorkin, echoed those sentiments.
"Many in the group think this really makes us feel like second-class
citizens,' said. "If we were a [racial or ethnic] minority, this
wouldn't be the policy of the school.'
Military recruiters are scheduled to appear on the Law School campus on
October 6 and October 12, Sorkin said, and he added: "We're not
just going to sit back and take it.'
At noon tomorrow, Minow and Loeb University Professor Laurence H. Tribe
'62 will unveil their friend-of-the-court brief at a press conference on
the steps of Langdell Library.
In an e-mail to The Crimson this evening, Tribe wrote that the brief is
being filed on the professors' behalf by the former acting solicitor
general during the Clinton administration, Walter E. Dellinger III.
FAIR President Kent Greenfield, a Boston College law professor who is
leading the opposition to the Solomon Amendment, said that in addition to the
Harvard brief, five to seven other groups will also file friend-of-the-court
briefs on FAIR's behalf tomorrow.
COURT-WATCHING
The new developments come less than a week after President Bush's
nominee for Supreme Court chief justice, John G. Roberts, Jr. '76, said
during his confirmation hearings that "as a general proposition,'
he believes that Congress may attach certain conditions to the receipt of
federal funds. The amendment only applies to schools that receive federal
grants.
Roberts' statement came in response to a question from Sen. Sam
Brownback, R-Kansas, an outspoken supporter of the Solomon Amendment.
Roberts cited the high court's 7-2 decision in South Dakota v. Dole,
which held that Congress could require states that receive federal highway
funds to adopt a 21-year-old minimum drinking age.
Greenfield said that Roberts' statement during the confirmation
hearings did not mean that the nominee would necessarily vote against FAIR.
"This is a First Amendment case, and South Dakota v. Dole
doesn't control this because that wasn't a First Amendment case.
All the First Amendment precedents are firmly on our side,' Greenfield
said.
The Supreme Court is scheduled to hear oral arguments in the case on
December 6 and will likely release its opinion sometime next year.
—Staff writer Daniel J. Hemel can be reached at
hemel@fas.harvard.edu.
—Staff writer Javier C. Hernandez can be reached at
jhernand@fas.harvard.edu.
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