Supreme Injustice

Last Monday, the U.S. Supreme Court announced that it will review the Solomon Amendment, which was recently declared unconstitutional by a U.S. Circuit Court of Appeals. The Solomon Amendment, which was signed into law by President Clinton in 1994, requires universities receiving federal funding to allow military recruiters on campus, even in spite of potential conflict with universities anti-discriminatory policies. The law has been contested by both sides over the last decade, including a 2003 congressional movement that required schools to give military recruiters equal access to the students, and the 2004 appeal that declared the law unconstitutional. We see it as a necessary step for the Supreme Court to grant certiorari to Rumsfeld v. Forum for Academic and Institutand Rights (FAIR), and we hope that they remain consistent with lower courts in declaring the amendment unconstitutional.

The Solomon Amendment has primarily affected law schools around the country, as the military has put significant effort into recruiting future lawyers. Harvard Law School requires all recruiters to sign a non-discrimination pledge to participate in on-campus activities, yet the military has refused to sign the pledge due to its explicit discrimination against the employment of homosexuals. Currently, their Dont ask, dont tell policy prohibits openly gay individuals from serving in the military. Given the explicit contradiction with Harvards anti-discrimination policies, the military has no right to recruit on campus.

The government has argued that the Solomon Amendment is constitutional since universities are not required to accept federal funding, and therefore do not have to let the military recruiters on campus. This is, however, sheer coercion due to the dependence of private universities on federal funding. Some schools receive upwards of hundreds of millions of dollars from the government, and asking them to forego this money as a cost for implementing non-discriminatory codes is absurd. It is simply not logistically feasible for Harvard to turn down federal funding and continue its cutting-edge research and education.

Since 1994, several universities have done everything within their power to keep the military and its Dont ask, dont tell policy off campus. After the 2003 change to the law requiring equal access, 31 law schools joined forces and created FAIR as a means of pursuing legal action against the government. Unfortunately, administrators decided that Harvard, while adamantly opposed to the Solomon Amendment, would not join FAIR or take legal action.

After this decision, Frankfurter Professor of Law Alan M. Dershowitz said, We failed our gay and lesbian students. We failed our principles. And we agree. We are starkly disappointed that Harvard has to be passive aggressive when it comes to this case; the University should have been proactive from the beginning. However, given the current situation and the appeal to the Supreme Court, we encourage the University to file an amicus brief with the court. Fifty members of the Harvard Law School faculty filed such a brief in the appeals court, and its effectiveness substantiates similar action with the Supreme Court.

We are pleased, though, that the University, since the U.S. Circuit Court of Appeals ruling, has continued to resist on-campus recruitment, even in light of the courts later decision not to implement its ruling until after the Supreme Court hearing. We applaud the administration for its stance against the bigotry of the military, but wish the principle had developed into greater action. Nonetheless, the litigation by FAIR has already produced significant results, and we hope similar results are achieved by the Supreme Court ruling.