The move, detailed to the school in an Aug. 23 memo by HLS Dean Robert C. Clark, came after the Air Force determined in May that the school’s ban on employers who fail to adhere to a nondiscrimination policy was not in compliance with a federal statute.
Congress required in a 1996 law—commonly known as the Solomon Amendment—that federal funding be withheld from schools that do not provide adequate access to military recruiters. Until May the military had not found HLS in violation of the statute.
For the last decade, the school has required all employment recruiters to sign a letter of nondiscrimination before they can access the Law School’s Office of Career Services. Military recruiters have been unable to sign such a statement because of the armed services’ “don’t ask, don’t tell” policy on homosexuals, leading the Law School to deny them the use of the school’s facilities.
“In the end, the decision to allow military recruiters on campus was necessary because of the extraordinary impact a prohibition of recruitment would have had on the University,” Clark wrote in the memo.
“I believe that an overwhelming majority of the Law School community opposes any form of discrimination based upon sexual orientation. At the same time, most of us reluctantly accept the reality that this University cannot afford the loss of federal funds.”
The Law School itself does not receive a large amount of federal funding, and Harvard would have been allowed to retain its federal student loan money even if in violation of the law, all other funds granted to the University by the federal government—including those provided for scientific research in the Faculty of Arts and Sciences and research at the Medical School—would have been cut.
The loss of these annual funds—which this year totaled $328 million, representing roughly 16 percent of the entire University’s operating budget—would have been “enormous,” University Vice President for Government, Community and Public Affairs Alan J. Stone said.
Law school officials declined to say what other responses to the Air Force’s decision they considered. However, Clark’s memo does note he had discussions about the decision both with University President Lawrence H. Summers and the University’s Office of the General Counsel. Harvard could have filed a legal challenge to the decision.
During his first year in office, Summers made several efforts to thaw the traditionally chilly ties between Harvard and the military. In an October address at the Kennedy School, Summers suggested that academia needed to show the armed services greater respect. In June he became the first University president in over 30 years to attend the commissioning eremony for the College’s graduates of the Reserve Officers Training Corps (ROTC).
Military recruiters have been able to gain access to the Law School’s campus for the past several years by the invitation of the Harvard Law School Veterans Association, an HLS student group. An Air Force review in 1998 had found that this mechanism provided the military adequate access to the Law School and put the University in compliance with the Solomon Amendment.
But in the latest review—initiated in December 2001—the Air Force found that the Law School did not meet the Solomon Amendment’s requirements and threatened to “forward this matter to the Office of the Secretary of Defense with a recommendation of funding denial,” according to the May 29 Air Force letter cited in Clark’s memo.
Air Force spokesperson Valerie Burkes said the reason for the shift in the military’s interpretation of the statute was a change to the Solomon Amendment in 2000 giving the Department of Defense “more options regarding enforcement” of the law. A procedural rule issued by the department in December 2000 allowed it to rescind funding from an entire institution because of the actions of one of its elements.
“The Air Force has not changed its interpretation of the law,” Burkes wrote in an e-mail. “We have consistently requested appropriate access for military recruiters on law school campuses.”
Many other law schools had previously changed their policy toward military recruiters as a result of the 1998 reviews under the Solomon Amendment, and Stone said he thought that about 15 law schools would be affected by the new reviews, which were completed this year by the Army and the Air Force.
Third-year law student Matthew DelNero, the outgoing co-chair of LAMBDA, a student organization representing the Law School’s gay, lesbian, bisexual and transgendered community, said he thought Clark and the University had considered the issue seriously and in the end had no choice but to allow the recruiters to use the Office of Career Services’ facilities.