Faculty File Brief Against Pentagon

A majority of the Harvard Law School (HLS) faculty submitted a friend-of-the-court brief to federal appellate judges yesterday arguing that Pentagon attorneys have misinterpreted the 1996 Solomon Amendment.

The move by 54 law professors marks the sixth friend-of-the-court brief filed this week challenging military recruitment on college campuses, including one from the student gay rights group HLS Lambda.

The Pentagon claims that under the 1996 statute, the secretary of defense can cut hundreds of millions of dollars in federal funds to universities that limit military recruiters’ access to students.

HLS professors are still considering initiating their own suit against the Pentagon, according to Bloomberg Professor of Law Martha L. Minow, who spearheaded the filing of yesterday’s brief.

The briefs support the Forum for Academic and Institutional Rights (FAIR), a network of 15 law schools, which has sued six Bush cabinet officials to halt enforcement of the amendment.

A three-judge panel from the Third Circuit Court of Appeals is expected to rule on the FAIR suit in mid-March.

HLS requires that recruiters who use the school’s Office of Career Services (OCS) must pledge not to discriminate on the basis of sexual orientation.

The military’s “don’t ask, don’t tell” policy requires the discharge of openly gay service members, and the Pentagon has refused to sign the pledge.

In May 2002, Pentagon officials threatened to block federal funding for all Harvard schools unless HLS provided the military access to OCS. Three months later, then-HLS Dean Robert C. Clark granted military recruiters an exemption from the nondiscrimination policy.

But according to yesterday’s brief, HLS had been in compliance with the Solomon Amendment even before Clark’s 2002 move.

The amendment “only applies to anti-military policies that single out the military for special disfavorable treatment,” the brief argues.

“Our old and long-standing policies with respect to military recruitment were perfectly legal,” said HLS Dean Elena Kagan, who signed yesterday’s brief in her capacity as a professor.

According to Minow, the brief also argues that even without using OCS resources, the Pentagon still succeeded in recruiting HLS students before the 2002 policy change.

The amendment only authorizes the Pentagon to retaliate against schools that “prohibit,” or “in effect prevent” military recruitment. But the level of access HLS provided to military recruiters prior to the change more than satisfied the statute’s requirements, Kagan said.

“Declaring that universities may not ‘prohibit’ or ‘prevent’ military recruitment is a far cry from saying that they must actively assist the military’s efforts,” the brief argues.

HLS Professor of Law Janet Halley, an expert on military policy toward gays, said that the brief presented “an elegant legal theory.”

But the professors’ brief—unlike the one filed by HLS students on Monday—does not discuss FAIR’s First Amendment claims.

“We’re not weighing in on the constitutional issues,” Kagan said. “We’re providing something new to the discussion...It’s an extremely convincing and powerful argument.”

“By focusing attention on the overly-broad enforcement of the statute, [the brief] calls the court’s attention to a domain in which distinct constitutional violations become visible,” Halley said.

The brief comes nearly three months after 47 of the 81 HLS faculty members sent a letter to University President Lawrence H. Summers urging him to initiate or join litigation against the Pentagon’s stance.

But Summers told law professors in November that, while he personally opposes the Solomon Amendment, the University would not challenge the Pentagon in court.

Kagan said in September that HLS was not part of FAIR, which protects its members’ anonymity.

Five law schools including New York University’s have publicly identified themselves as FAIR members.

In November, U.S. District Court Judge John C. Lifland, a 1957 HLS graduate, denied FAIR’s motion for a temporary order suspending enforcement of the Pentagon’s recruitment policy. FAIR responded by appealing Lifland’s decision to the Third Circuit.

The HLS professors are not the only high-profile friends-of-the-court, or amici curiae, to back FAIR’s case.

A group of retired military officers filed a brief Monday arguing that the Pentagon has no legitimate interest in overriding universities’ recruitment policies.

Also on Monday, the 164-member Association of American Law Schools (AALS) filed a brief arguing that the Pentagon’s policy caused irreparable harm to schools’ nondiscrimination messages.

While HLS is an AALS member, Kagan said that she was not consulted in the decision to file the Monday brief.

FAIR founder Kent Greenfield, a Boston College law professor, told The Crimson yesterday that the HLS professors’ brief would bolster his group’s effort.

“There are few groups that would add such heft to our cause,” Greenfield said. “With such a strong group of amici, the Third Circuit will not be able to ignore the importance of this case.”

But Lambda secretary Holly S. Lewis, a second-year HLS student, said that the professors’ brief “seemed like a gesture.” “I hope this doesn’t substitute for their own lawsuit,” she said.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.