Faculty File Brief Against Pentagon

A majority of the Harvard Law School (HLS) faculty submitted a friend-of-the-court brief to federal appellate judges yesterday arguing that Pentagon attorneys have misinterpreted the 1996 Solomon Amendment.

The move by 54 law professors marks the sixth friend-of-the-court brief filed this week challenging military recruitment on college campuses, including one from the student gay rights group HLS Lambda.

The Pentagon claims that under the 1996 statute, the secretary of defense can cut hundreds of millions of dollars in federal funds to universities that limit military recruiters’ access to students.

HLS professors are still considering initiating their own suit against the Pentagon, according to Bloomberg Professor of Law Martha L. Minow, who spearheaded the filing of yesterday’s brief.

The briefs support the Forum for Academic and Institutional Rights (FAIR), a network of 15 law schools, which has sued six Bush cabinet officials to halt enforcement of the amendment.

A three-judge panel from the Third Circuit Court of Appeals is expected to rule on the FAIR suit in mid-March.

HLS requires that recruiters who use the school’s Office of Career Services (OCS) must pledge not to discriminate on the basis of sexual orientation.

The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay service members, and the Pentagon has refused to sign the pledge.

In May 2002, Pentagon officials threatened to block federal funding for all Harvard schools unless HLS provided the military access to OCS. Three months later, then-HLS Dean Robert C. Clark granted military recruiters an exemption from the nondiscrimination policy.

But according to yesterday’s brief, HLS had been in compliance with the Solomon Amendment even before Clark’s 2002 move.

The amendment “only applies to anti-military policies that single out the military for special disfavorable treatment,” the brief argues.

“Our old and long-standing policies with respect to military recruitment were perfectly legal,” said HLS Dean Elena Kagan, who signed yesterday’s brief in her capacity as a professor.

According to Minow, the brief also argues that even without using OCS resources, the Pentagon still succeeded in recruiting HLS students before the 2002 policy change.

The amendment only authorizes the Pentagon to retaliate against schools that “prohibit,” or “in effect prevent” military recruitment. But the level of access HLS provided to military recruiters prior to the change more than satisfied the statute’s requirements, Kagan said.

“Declaring that universities may not ‘prohibit’ or ‘prevent’ military recruitment is a far cry from saying that they must actively assist the military’s efforts,” the brief argues.

HLS Professor of Law Janet Halley, an expert on military policy toward gays, said that the brief presented “an elegant legal theory.”