Harvard will not be among the schools challenging the 1996 Solomon Amendment, which mandates that universities allow military recruiters on law school campuses or face the loss of federal funding—potentially hundreds of millions of dollars per school per year. In spite of Summers’ reluctance to enter the fray, the University has an obligation to take formal action against this amendment because the military’s “don’t ask, don’t tell” policy is discriminatory and makes second-class citizens of gay Americans.
Harvard’s refusal to participate in the lawsuit raises serious questions about the University’s commitment to fight discrimination, and it undermines Harvard’s traditional role as a progressive institution dedicated to equal rights. Harvard should be searching for any occasion to correct these wrongs, not shirking from a clear opportunity to promote liberal principles and protect its students.
While barring military recruiters from Harvard Law School (HLS) would have cost the University $412 million for this fiscal year, litigating would not risk the loss of funds. It is understandable, though regrettable, that the University had to buckle under financial pressure to allow the recruiters access to the Office of Career Services at HLS. With no funds at stake and no compelling reason to avoid confrontation, however, it is unconscionable that the University is not challenging the legislation in court.
Summers’ decision to stay on the sidelines of the legal action is all the more lamentable because of the power of Harvard’s name and resources. If Harvard were to join the suit, it could help further the fight against the act, a fight that already has gained considerable momentum—only two weeks ago, a judge rejected the Defense Department’s motion to dismiss the lawsuit. Harvard’s backing could enhance the efficacy of this legal pressure.
With all indicators pointing toward a strident and enthusiastic challenge to this amendment, it is difficult to understand Summers’ decision. In a letter addressed to HLS’ Lambda, a student organization that aims to provide a voice for the gay, lesbian, bisexual and transgendered community at the Law School, Summers correctly identifies the recent interpretations of the Solomon Amendment as “unsound and corrosive public policy.” And yet he goes on to provide an unsatisfying explanation for not challenging such a despicable policy. “Particularly in light of the highly constructive partnership that exists between higher education and the federal government in a great many areas, the University must exercise considerable restraint when it comes to the quintessentially adversarial act of filing a lawsuit,” he wrote.
This explanation fails to acknowledge the University’s role in taking principled stands on important issues, even if that means challenging the federal government. Harvard, dedicated to its anti-discrimination policy and equal rights for all citizens, cannot tolerate discrimination based on sexual orientation on its campus in any form. A partnership as coercive as the one that produced the Solomon Amendment can hardly be considered “constructive.”
The administration contends that Harvard has made its position known both publicly and privately with Washington officials. “We are certainly making our views known and discussing this both with the executive and legislative branches,” Summers told The Crimson last week. Although this is a step in the right direction, it cannot take the place of an official challenge to the law in the courts.
The faculty and students at HLS seem to recognize the high stakes of the judicial decision, and their petition efforts encouraging Harvard to join the lawsuit should be applauded. Members of the Law School’s faculty have promised to file suit against the Pentagon; while this would be a momentous and significant step, such a suit ultimately cannot carry the weight that an official legal challenge from the University would.
Summers’ decision to accept discrimination against homosexuals is frustrating and misguided. He should reevaluate the position he has taken, so that Harvard’s name and resources can help bring down the amendment. Even an unsuccessful suit would underscore the University’s dedication to equal rights. When Summers took office in 2001, many on campus were hopeful that he would use his bully pulpit to take principled stands on issues of national importance. Now is his chance to do so.