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.