With a fiscal gun at the University’s head, Harvard Law School (HLS) has reversed its position on military recruiting on its campus. The armed services now have access to students through the Office of Career Services (OCS), rather than through informal arrangements made by students or alumni. HLS dean Elena Kagan explained the change in a letter to the community on September 20. The Department of Defense notified the school during the summer that it would “withhold all possible funds” from Harvard: the so-called Solomon Amendment enables the government to cut off all research funding to an institution. HLS has no such support, but the University now receives about a half-billion dollars of federal research money annually, all of it at risk over the terms of job interviews for candidates for the military’s legal service. The University, interestingly, has reversed its legal posture as well, signing a brief that challenges the Solomon Amendment in litigation that reaches the Supreme Courtand Chief Justice John G. Roberts Jr. ’76, J.D. ’79this fall.
Kagan’s letter explained that HLS policy, adopted in 1979, requires employers using OCS to recruit to “sign a statement indicating that [they do] not discriminate on various bases, including sexual orientation.” The military’s “Don’t ask, don’t tell” standard, barring service by acknowledged homosexuals, fails this test. But in 2002, faced with more aggressive Pentagon use of the Solomon Amendment, HLS “reluctantly created an exception from the…antidiscrimination policy for the military,” continuing it in 2003 and 2004.
In 2003, the Forum of Academic and Institutional Rights (FAIR), a consortium of law schools (HLS is not a member), filed a lawsuit challenging the amendment. But President Lawrence H. Summers, while deploring the Solomon Amendment and a military policy which “offends ideals of nondiscrimination and individual dignity,” declined to litigate, preferring quieter means to try to effect changes. Kagan and a majority of HLS faculty, on their own, did file a brief, as did a student group, HLS Lambda (see “Military Recruiting: The Lawsuits,” March-April 2004, page 74). Last November, the Third Circuit Court of Appeals enjoined enforcement of the Solomon Amendment and Kagan promptly reinstated the ban for the spring 2005 hiring season (see “Recruiting Redux,” July-August, page 60).
Pending Supreme Court review, however, the Third Circuit ruling is stayed, and HLS’s decision subjected Harvard to renewed financial pressure. That prompted Kagan’s reversal, with “regret” at accommodating a federal policy she characterized as “unwise and unjust.”
On September 21, Kagan and 39 colleagues filed an amicus brief in the FAIR case, arguing that military recruiters already have access to students on the same terms as all other prospective employers. More newsworthy, Summers announced that Harvard would join the amicus brief filed by Yale, Columbia, Cornell, New York University, the University of Chicago, and the University of Pennsylvania in support of FAIR’s main argumentthat the federal law, improperly coercive, violates free- speech rights within the academy.
Thomas H. Parry ’74, a former elected director of the Harvard Alumni Association and now president of the Harvard Gay and Lesbian Caucus, which had previously criticized Summers, applauded the decision to join the lawsuit. The caucus, he said, urged Summers to go further, “us[ing] his considerable clout to raise public awareness that the Solomon Amendment is an insidious attack on the First Amendment. Sexual orientation may be the issue of the day, but if the law is not struck down, then Congress will be free to use the power of the purse to make academic policy wherever and whenever it likes.”