Faculty Will Ask Summers To Fight Military Recruiting

Harvard Law School (HLS) professors will send an open letter to University President Lawrence H. Summers Wednesday, requesting that the University take legal action to prevent the military from recruiting on campus.

According to Professor of Law Christine A. Desan, at least 20 members of the HLS faculty have already signed onto the letter, which she said asks Summers “to initiate or join litigation designed to challenge the Solomon Amendment.”

The Solomon Amendment allows the Pentagon to block federal funding for universities that limit military recruiters’ access to students.

Opponents claim that the law conflicts with law schools’ nondiscrimination policies, which require that recruiters treat applicants and employees equally with regard to sexual orientation. The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay individuals.

A spokesperson for Summers declined to comment on the letter, as it has not yet been sent to the president’s office.

The letter to Summers comes as at least three separate legal challenges to the Solomon Amendment begin to work their way through the courts.

The military upped the pressure on law schools to comply with the statute last year, forcing Harvard, Yale and all other major law schools to allow Judge Advocate General recruiters on campus in an official capacity.

Harvard receives more than $300 in federal funds annually.

A majority of Yale Law School’s faculty filed suit against Defense Secretary Donald H. Rumsfeld in U.S. District Court in New Haven Friday.

The suit charges that the Solomon Amendment violates faculty members’ First Amendment right to free association because it requires them to cooperate with discriminatory employers.

The suit also charges that the Defense Department, by forcing the faculty to participate in discrimination against gay students, has violated the professors’ Fifth Amendment right to due process.

A group of 21 University of Pennsylvania law professors and six students filed a similar suit in U.S.District Court in Philadelphia earlier this month.

The two suits come less than a month after a broad coalition of law schools and professors, calling itself the Forum for Academic and Institutional Rights (FAIR), filed a challenge to the Solomon Amendment in a U.S. District Court in Newark.

FAIR’s membership is anonymous in order to protect its constituents from government retribution, although the New York University School of Law has publicly identified itself as a member.

HLS is not party to the FAIR suit, according to Dean Elena Kagan, who added in a statement last month that she shares the group’s “commitment to nondiscrimination.”

The HLS professors’ letter is a “step in the right direction,” said Amanda C. Goad, president of HLS Lambda, a law students’ group that advocates for gay rights.

“University administrations are typically skeptical of efforts like this and protective of their interests,” FAIR President and Boston College law professor Kent Greenfield said.

“Our greatest hope lies with the professors right now,” Lambda Political Chair Amy R. Lawler said.

A FAIR Shake

According to Greenfield, Judge John C. Lifland, who is presiding over the FAIR lawsuit, has indicated that he will rule on the group’s motion for a preliminary injunction by the end of this week.

“An injunction—if entered—could put a hold on Defense Department actions while the judge adjudicates the case more fully,” Greenfield said.

If Lifland issues an injunction, then the case would likely continue for months before he hands down a final ruling.

“If we don’t get the injunction, we plan to appeal immediately to the Third Circuit,” Greenfield said.

FAIR is pursuing a high-risk, high-reward strategy, while Yale faculty members have opted for a “safer course,” said Robert A. Burt, a Yale law professor who is one of the suit’s lead plaintiffs.

The Yale professors “have not asked for temporary relief,” Burt said. “When you ask for an injunction, you have to show that you will be irreparably damaged.”

Since law schools have coped with the Defense Department’s threats for more than one year, judges would be unlikely to agree with FAIR’s request, Burt said.

“If they succeed in their request for an injunction, all credit to them,” Burt said.

But Greenfield stressed the power of FAIR’s coalition.

“While I welcome the Yale faculty’s suit, the best way for schools to show their opposition to the Solomon Amendment is to join FAIR,” Greenfield said.

According to Burt, Yale professors filed suit after the university’s talks with Pentagon officials stalled.

“The university continues to believe that they can negotiate with the Department of Defense and persuade the Defense Department that our nondiscrimination policy is in compliance” with the Solomon Amendment, Burt said.

“We have now gone through three different hiring seasons with our policy on temporary suspension. It is time to face the facts,” said Burt. “The Department of Defense has made it very clear that they feel our policy is out of compliance.”

According to Burt, the Yale professors hope the suit will serve as an example that other schools, including Harvard, will follow.

“If they want to oppose this heavy-handed illegal conduct, the Yale Law faculty’s response would be ‘Go Crimson!’” said David N. Rosen ’65, local counsel for Yale professors.