Court Says Schools Must Let Military on Campus

Ruling by Roberts '76 puts his alma mater in a bind

The Supreme Court ruled 8-0 this morning that universities accepting federal funds—including Harvard—must open their doors to military recruiters, despite their opposition to the Pentagon’s “don’t ask, don’t tell” policy.

The decision—written by Chief Justice John G. Roberts Jr. ’76—puts Roberts’ alma mater in a bind. A 27-year-old old Law School policy requires employers to sign a nondiscrimination pledge as condition for gaining access to the school's career placement office. The "don't ask, don't tell" policy prohibits openly gay and lesbian individuals from serving in the armed forces, and the military has refused to sign the Law School's pledge.

The ruling ends more than two years of litigation over the Solomon Amendment, a law first enacted by Congress in 1994 that permits the secretary of defense to withhold most forms of federal funding from schools that restrict military recruitment on campus.

The Forum for Academic and Institutional Rights (FAIR), a coalition of more than two dozen law schools opposed to the Solomon Amendment, argued that the Pentagon policy violated the schools’ right to free speech and free association. Harvard declined to join FAIR, but the University filed a friend-of-the-court brief backing FAIR's case last fall.

In today’s decision, the court wrote that the Solomon Amendment “neither limits what law schools may say nor requires them to say anything.”

“A military recruiter’s mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter’s message,” Roberts wrote.

Last fall, Law School Dean Elena Kagan announced that the school—facing threats from the Pentagon to block more than $400 million in federal funding to Harvard—would once again grant military recruiters access to the school’s Office of Career Services.

Harvard adopted its nondiscrimination policy in 1979 and enforced it until 2002, when then-Dean Robert C. Clark, under heavy Pentagon pressure, agreed to grant military recruiters an exemption. Kagan again barred military recruiters in late 2004, but relented less than a year later.

The Law School’s gay, lesbian, bisexual, and transgender student group, Lambda, formed a task force last year to propose possible measures to offset the impact of a potential case pro-Solomon ruling. Lambda Co-President Jeffrey G. Paik ’03 said that the organization will release a statement this afternoon.

In today’s opinion, the Court left room for groups like Lambda, as well as Law School professors, to protest the Pentagon’s presence on campus.

“Students and faculty are free to associate to voice their disapproval of the military’s message,” Roberts wrote.

Oral arguments in the case—Rumsfeld v. FAIR—were held in December. Newly-appointed Justice Samuel A. Alito Jr. abstained from the decision.

--Staff writer Javier C. Hernandez can be reached at jhernand@fas.harvard.edu.

--Check thecrimson.com throughout the afternoon for updates.