Tuesday’s brief is the latest development in a high-profile suit challenging the 1996 Solomon Amendment, under which the Pentagon has threatened to cut funding to universities that fail to cooperate with military recruiters.
The government’s action comes just one month after a majority of the Harvard Law School (HLS) faculty asked the Third Circuit Court of Appeals to let universities exclude the Pentagon from official recruiting functions.
“When educational institutions close their doors to military recruiting, they directly interfere with the federal government’s constitutionally mandated function of raising a military and thereby compromise the defense of the nation,” government attorneys charged.
HLS requires that recruiters who use its Office of Career Services 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 servicemembers, and the Pentagon has refused to sign the nondiscrimination pledge.
In May 2002, then-HLS Dean Robert C. Clark granted military recruiters an exemption from the
nondiscrimination policy after the Pentagon threatened to cut hundreds of millions of dollars in federal funds to the University.
But HLS professors continued to fight the Pentagon’s policy, even as the military gained access to the school’s recruiting resources.
In January, HLS professors submitted a friend-of-the-court brief on behalf of the Forum for Academic and Institutional Rights (FAIR), a national network of law schools and student groups that filed a lawsuit against the Pentagon last September.
The FAIR suit contends that the Solomon Amendment is unconstitutional because it forces law schools to propagate the military’s anti-gay policy.
In their brief, the HLS professors argued that Pentagon lawyers had misinterpreted the 1996 statute, and that Harvard had been in compliance with the Solomon Amendment even before Clark waived the nondiscrimination requirement for military recruiters.
FAIR lawyer E. Joshua Rosenkranz of the New York law firm Heller, Ehrman, White and McAuliffe said that the HLS professors have filed the only friend-of-the-court brief that challenges the Pentagon’s interpretation of the statute—rather than the constitutionality of the amendment itself.
But government lawyers barely mentioned the HLS professors’ arguments Tuesday—except for a footnote on page 47 of the 12,000-word brief.
“Because the plaintiffs...have not pursued [the HLS professors’] claim in this appeal, the government need not address it here,” Justice Department attorneys argued Tuesday.
The government’s failure to respond to the HLS professors’ claims could prove significant as the case progresses, according to Rosenkranz.