Kagan’s announcement marks a reversal of her November 2004 decision to bar Pentagon recruiters from using the law school’s Office of Career Services. For most of the last 26 years, the office has only provided its resources to recruiters who promise not to discriminate against gay and lesbian employees and job applicants. The Pentagon’s “don’t ask, don’t tell” policy prohibits gays and lesbians from serving openly in the military.
In an e-mail to students and faculty last night, Kagan wrote that the Pentagon had notified the University this summer that it would withhold most federal grants to Harvard unless the Law School’s career services office gives aid to military recruiters.
Harvard receives more than $400 million per year in federal grants.
Meanwhile, University President Lawrence H. Summers said in a statement last night that Harvard will file a friend-of-the-court brief today urging the Supreme Court to invalidate the Solomon Amendment, the statute initially passed by Congress in 1994—and subsequently modified—that allows the secretary of defense to block federal funds to universities that restrict military recruiters’ access to students.
“The Law School and the University share a deep and enduring commitment to the principles of nondiscrimination and equal opportunity for all persons,” Summers said.
Summers also said that he agreed with Kagan’s move to grant Pentagon recruiters an exemption from the nondiscrimination policy.
“This decision is prudent given the potential consequences to the University’s research and other activities,” he said.
In a separate brief that will be filed today, about 40 Harvard professors, including Kagan, urge the high court to overturn the Solomon Amendment, said Smith Professor of Law Martha L. Minow.
A federal appellate panel in Philadelphia ruled last year that the Solomon Amendment “requires law schools to express a message that is incompatible with their educational objectives” and therefore violates the schools’ free-speech rights. The panel suspended the enforcement of the amendment.
But the panel consisted of judges from the Third Circuit Court of Appeals, and its ruling did not make clear whether the Solomon Amendment still applied outside the Third Circuit—which has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.
The ruling came in response to a lawsuit filed by the Forum for Academic and Institutional Rights (FAIR), a coalition of more than two dozen law schools that oppose the Solomon Amendment. Harvard is not a member of FAIR, and Summers has said that the University will not file a suit against the federal government challenging the Solomon Amendment.
The Supreme Court announced in May that it will review the Third Circuit’s decision later this year and put the panel’s ruling on hold for the time being.
With Harvard facing the potential loss of its federal grants, amounting to 15 percent of its total budget, Kagan wrote in her e-mail, “I regret making this exception to our antidiscrimination policy” and reiterated her opposition to the “don’t ask, don’t tell” protocol.
“I believe the military’s discriminatory employment policy is deeply wrong—both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have,” she wrote.
Before making her policy reversal public yesterday, Kagan attended a meeting last night of the Law School’s gay, lesbian, bisexual, and transgender student group, Lambda, to explain her decision.
Lambda President Jeffrey G. Paik ’03 released a statement last night calling the Department of Defense’s enforcement of the Solomon Amendment “reprehensible” but applauding Kagan for “the courageous action she took last November.”
Lambda’s treasurer, Adam R. Sorkin, echoed those sentiments.
“Many in the group think this really makes us feel like second-class citizens,” said. “If we were a [racial or ethnic] minority, this wouldn’t be the policy of the school.”
Military recruiters are scheduled to appear on the Law School campus on October 6 and October 12, Sorkin said, and he added, “We’re not just going to sit back and take it.”
At noon today, Minow and Loeb University Professor Laurence H. Tribe ’62 are slated to unveil their friend-of-the-court brief at a press conference on the steps of Langdell Library.
In an e-mail to The Crimson yesterday, Tribe wrote that the brief is being filed on the professors’ behalf by the former acting solicitor general during the Clinton administration, Walter E. Dellinger III.
FAIR President Kent Greenfield, a Boston College law professor who is leading the opposition to the Solomon Amendment, said that in addition to the Harvard brief, five to seven other groups will also file friend-of-the-court briefs on FAIR’s behalf today.
The new developments come less than a week after President Bush’s nominee for Supreme Court chief justice, John G. Roberts, Jr. ’76, said during his confirmation hearings that “as a general proposition,” he believes that Congress may attach certain conditions to the receipt of federal funds. The Solomon Amendment only applies to schools that receive federal grants.
Roberts’ statement came in response to a question from Sen. Sam Brownback, R-Kansas, an outspoken supporter of the Solomon Amendment.
Roberts cited the high court’s 7-2 decision in South Dakota v. Dole, which held that Congress could require states that receive federal highway funds to adopt a 21-year-old minimum drinking age.
Greenfield said that Roberts’ statement during the confirmation hearings did not mean that the nominee would necessarily vote against FAIR.
“This is a First Amendment case, and South Dakota v. Dole doesn’t control this because that wasn’t a First Amendment case. All the First Amendment precedents are firmly on our side,” Greenfield said.
The Supreme Court is scheduled to hear oral arguments in the case on December 6 and will likely release its opinion sometime next year.
—Staff writer Daniel J. Hemel can be reached at firstname.lastname@example.org.
—Staff writer Javier C. Hernandez can be reached at email@example.com.