High Court: Schools Must Allow Recruiters

In 8-0 opinion, Supreme Court says universities cannot bar military from campus

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

The decision—authored by Chief Justice John G. Roberts Jr. ’76—leaves Roberts’ alma mater in a bind. In 1979, the same year Roberts graduated from Harvard Law, the school adopted a policy requiring employers to sign a nondiscrimination pledge as a condition for gaining access to the career placement office. But the military has refused to sign that pledge because its “don’t ask, don’t tell” policy prohibits openly gay and lesbian individuals from serving in the armed forces.

The decision 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 Pentagon has told Harvard officials that if the Law School were to maintain its nondiscrimination policy and exclude military recruiters, the entire University would lose over $400 million a year in federal funds.

Last fall, Law School Dean Elena Kagan bowed to those Pentagon threats, granting military recruiters access to the school’s Office of Career Services.

Kagan did not respond to repeated requests for comment yesterday, and a spokesman for the Law School said that administrators are still reviewing the decision and plan to release a statement today.


The Forum for Academic and Institutional Rights (FAIR), a coalition of more than three dozen law schools, argued in the case that the Solomon Amendment violated the schools’ rights to free speech and free association.

But in the decision, the court found that the amendment “neither limits what law schools may say nor requires them to say anything.”

And Roberts wrote that “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.”

Throughout the legal battle, Harvard University has largely remained on the sidelines, only formally entering the fray last fall when it joined a friend-of-the-court brief supporting FAIR’s case.

But faculty members took a more active role, and last fall, 40 Harvard law professors filed their own brief in the case. In yesterday’s opinion, the court singled out the professors’ argument and struck it down.

In a statement last night, a spokesman for University President Lawrence H. Summers said that the University still remains opposed to the amendment.

“Harvard fully respects the Supreme Court’s decision, but we continue to believe that the Solomon Amendment is a coercive law intended to enforce a corrosive policy,” said the spokesman, John D. Longbrake.

Department of Defense spokeswoman Lt. Col. Ellen G. Krenke wrote in an e-mail yesterday that in enforcing the Solomon Amendment, the Pentagon is “not asking for special treatment or seeking to compel or suppress free speech.”

“We simply want to be able to compete on an even playing field for the best and brightest that our nation’s universities have to offer,” Krenke wrote.


The decision yesterday was seen by many opponents of the amendment as a spark for renewed and reinvigorated protests against the military on campuses across the country. The Solomon Amendment mandates that universities provide access “that is at least equal in quality and scope” to services provided to other employers.

But the exact definition of equal access, and the line between acceptable protest and unlawful disruption, is still a live issue in the wake of the court’s ruling.

When the case was heard by the high court last December, Solicitor General Paul D. Clement, a 1992 Harvard Law graduate, said that the government would not object to protesters organizing lines of students heckling recruiters and applicants. Although the court did not outline specific guidelines for protests in the opinion, it did acknowledge the right of students and faculty “to associate to voice their disapproval of the military’s message.”

Boston College law professor and FAIR president Kent Greenfield said yesterday that the “silver lining” in the decision was the court’s reaffirmation of protest rights.

“I’m sure a lot of law schools around the country will take them up on it,” Greenfield said. “I think as long as we’re not blocking entry-ways, we can speak out, we can cry out, we can post posters.”

E. Joshua Rosenkranz, the lawyer who argued FAIR’s case before the Supreme Court, called the decision a “galvanizing moment for the law school community.”

“You will see signs posted over interview rooms that say, ‘Warning: Discriminating employer inside.’ You will see scarlet letters put on military recruiting literature. You will see schools organizing protests to jeer at recruiters who have a policy of discriminating against the school’s own students,” Rosenkranz wrote in an e-mail to The Crimson.

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 pro-Solomon ruling.

In the past, students affiliated with the group have protested the military by signing up for interview slots with recruiters to waste their time, picketing military recruitment events, and staging sit-ins to protest “don’t ask, don’t tell.”

Lambda Co-President Jeffrey G. Paik ’03 said last night that the group is now calling on the University to take a more proactive role in “protecting students against discrimination.”

“You really can’t justify waiting around anymore,” Paik said. “If after all these years they don’t do anything, I could see a lot of discontent within the student body arising.”

In a statement yesterday, Lambda called for the University to publicly back a bill sponsored by Rep. Marty Meehan, D-Mass., that would repeal the “don’t ask, don’t tell” policy.

Newly appointed Justice Samuel A. Alito Jr. did not vote on the case because he was not on the bench when oral arguments were heard in December.

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