The school had for decades prohibited recruiters for the Judge Advocate General (JAG) Corps from using its Office of Career Services because the military’s “don’t ask, don’t tell” policy violated the school’s nondiscrimination policies.
But after the Air Force threatened the University last May with the loss of $328 million in federal funding under a 1996 federal statute—known as the Solomon Amendment—compelling universities to grant military recruiters equal access to facilities, the school capitulated and reversed its policy this summer.
While members of Lambda, the school’s gay rights group, have said they agree the Law School had little choice but to bow to the financial pressure, they are discussing a variety of legal challenges that could include a suit against Harvard.
Although “don’t ask, don’t tell” has been upheld in courts repeatedly, third-year law student Lindsay Harrison said no one has challenged its constitutionality applied only to the lawyers’ JAG program—where a gay soldier’s impact on combat effectiveness could not be at issue.
But constitutional scholars at the Law School said such a move is unlikely to succeed.
“It’s not a frivolous argument. It just won’t win,” said Beneficial Professor of Law Charles Fried, a former justice on the Massachusetts Supreme Judicial Court.
“If you’re in the military and wearing a uniform, the courts are not going to make distinctions in terms of what particular functions you’re performing,” he said.
Harrison, a member of Lambda’s executive board, said students and faculty have also considered a challenge to the military’s interpretation of the Solomon statute.
An Air Force review in 1998 determined that the school’s policy of allowing a student group—the Harvard Law School Veterans Association—to schedule student appointments with JAG recruiters met requirements for adequate access.
Harvard had not changed that policy when the Air Force ordered it to allow officially-sanctioned visits in May as part of a review of about 15 other law schools.
“My understanding is they’re just taking a harder line in the Defense Department, which I think is very unfortunate,” said Carl Monk, the executive director of the Association of American Law Schools, an organization that includes Harvard and has been an active opponent of on-campus military recruiting.
Sam Bagenstos, an assistant professor of law who has not been involved in the Lambda discussions, said he disagreed with the military’s current interpretation of the Solomon Amendment, which mandates that the “degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers.”
“I think it’s clear from reading the statute that Harvard was in compliance before we changed our policy,” he said. “Whether there is some way of doing anything about that at this point, I haven’t thought through.”
But while other scholars agreed that a Solomon interpretation challenge had the highest probability of success, it would be one difficult for students to mount.
Because the University is the directly injured party, student plaintiffs would have to prove they have legal standing to make a claim, and Fried said he thinks such a case would be thrown out.