At HLS, Protests Will Greet Air Force

Harvard Law School students and professors are planning protests and debating legal measures aimed at fighting a decision allowing the military to recruit through official channels on campus.

The school had for decades prohibited recruiters for the Judge Advocate General (JAG) Corps from using its Office of Career Services because the military’s “don’t ask, don’t tell” policy violated the school’s nondiscrimination policies.

But after the Air Force threatened the University last May with the loss of $328 million in federal funding under a 1996 federal statute—known as the Solomon Amendment—compelling universities to grant military recruiters equal access to facilities, the school capitulated and reversed its policy this summer.

While members of Lambda, the school’s gay rights group, have said they agree the Law School had little choice but to bow to the financial pressure, they are discussing a variety of legal challenges that could include a suit against Harvard.

Although “don’t ask, don’t tell” has been upheld in courts repeatedly, third-year law student Lindsay Harrison said no one has challenged its constitutionality applied only to the lawyers’ JAG program—where a gay soldier’s impact on combat effectiveness could not be at issue.

But constitutional scholars at the Law School said such a move is unlikely to succeed.

“It’s not a frivolous argument. It just won’t win,” said Beneficial Professor of Law Charles Fried, a former justice on the Massachusetts Supreme Judicial Court.

“If you’re in the military and wearing a uniform, the courts are not going to make distinctions in terms of what particular functions you’re performing,” he said.

Harrison, a member of Lambda’s executive board, said students and faculty have also considered a challenge to the military’s interpretation of the Solomon statute.

An Air Force review in 1998 determined that the school’s policy of allowing a student group—the Harvard Law School Veterans Association—to schedule student appointments with JAG recruiters met requirements for adequate access.

Harvard had not changed that policy when the Air Force ordered it to allow officially-sanctioned visits in May as part of a review of about 15 other law schools.

“My understanding is they’re just taking a harder line in the Defense Department, which I think is very unfortunate,” said Carl Monk, the executive director of the Association of American Law Schools, an organization that includes Harvard and has been an active opponent of on-campus military recruiting.

Sam Bagenstos, an assistant professor of law who has not been involved in the Lambda discussions, said he disagreed with the military’s current interpretation of the Solomon Amendment, which mandates that the “degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers.”

“I think it’s clear from reading the statute that Harvard was in compliance before we changed our policy,” he said. “Whether there is some way of doing anything about that at this point, I haven’t thought through.”

But while other scholars agreed that a Solomon interpretation challenge had the highest probability of success, it would be one difficult for students to mount.

Because the University is the directly injured party, student plaintiffs would have to prove they have legal standing to make a claim, and Fried said he thinks such a case would be thrown out.

Harrison said that in the case of a first amendment challenge, students have discussed claiming standing by arguing their constitutional rights are being violated because they will be compelled to associate with the military and its policy.

If the students were to bring a discrimination action against “don’t ask, don’t tell” and JAG, Harrison said they could simply go to the scheduled interview sessions and be rejected after stating their sexual orientation.

Bagenstos said he thought such an argument for student standing “would be difficult” but added that he hadn’t considered the question of anyone but Harvard bringing suit.

Harrison said that because of the standing problem, students have also proposed suing Harvard for breach of contract, arguing that the Law School has an obligation to provide a non-discriminatory environment.

But Fried said a contractual argument against Harvard would be “far-fetched.”

“It has an obligation to provide a lawful environment, and obeying the laws of the United States can’t be unlawful,” he said.

“Under a variety of legal doctrines, if what people in the Law School really want to object to is the government’s policy, it will be hard for them to win a lawsuit in which they’re suing Harvard rather than suing the government,” said Professor of Law Richard Fallon.

But Harrison said that regardless of the legal success of suits against Harvard or the government, the students also hope to influence public sentiment.

“We’d be bringing the lawsuit to win, but there’d be collateral effects such as raising awareness of the military’s policy,” she said.

Although neither Lambda as an organization nor the individual students have decided whether they will actually bring suit, they have planned a number of other protest measures.

Lambda will stage a student and faculty protest in the Law School’s Pound building on the first week of October, when the military’s first school-coordinated interview at Harvard will take place.

Lambda President Adam Teicholz, a second-year law student, said he hopes it will include former members of the military who were discharged because of their sexual orientation. Next week, the group will begin a poster campaign around the Law School campus and the Yard, showcasing pictures of gays who were forced to leave the military.

In addition, a number of law school students—including Harrison—plan to sign up for all the scheduled interview slots, forcing the JAG recruiters to discuss the “don’t ask, don’t tell” policy instead of the perks of military service.

“We feel that because the military so aggressively pushed its way on campus, the best way to send a message that those tactics can’t work is to make the interviewers sit down one on one and hear our stories,” Teicholz said.

“I definitely know that I plan to discuss the ‘don’t ask, don’t tell’ policy, ask the recruiters why I would not make a good member of the JAG Corps, just have a reasoned discussion about why the policy exists,” Harrison said.

OCS, Lambda and the Veterans Association have worked to ensure that students who are seriously interested in military jobs will be able to interview through the previous system.

“If Lambda successfully occupies a considerable amount of the military’s interview slots and some people really wanted to interview but couldn’t, we’ll call up the recruiters and try to schedule something through us,” said second-year law student Scott Smith, vice president of the Veterans Association.

Smith said that while he thought official visiting sessions might give more “legitimacy to the military” and OCS advertisements would probably reach more people, he was unsure whether they would make a difference in recruiting.

“The amount of people that go into the public sector is pretty small to begin with,” he said.

Smith, who was an officer in the Marines before coming to Harvard, said he had mixed feelings about the military’s decision to pressure the Law School to back down from its antidiscrimination policy.

“I think the nation’s defense is a very important thing, it’s a very honorable way of life,” he said. “If this provides the opportunity for more people, it’s a great thing. But I certainly empathize with the student body here, that we have a school that welcomes differences.”

—Staff writer Elisabeth S. Theodore can be reached at theodore@fas.harvard.edu.