Professors Stand Up To Recruiters

Forty Harvard Law School professors filed a brief with the Supreme Court yesterday, arguing that law schools should be able to deny military recruiters access to campus resources until the Pentagon pledges not to discriminate against gays and lesbians.

The brief comes one day after the Law School reversed course and announced it would cooperate with military recruiters—a move that came in response to a threat from the Pentagon to cut over $400 million in federal grants earmarked for the University.

Siding with a coalition of over two dozen law schools that calls itself the Forum for Academic and Institutional Rights (FAIR), the professors contended that the government has unlawfully exceeded the limits of the Solomon Amendment—a statute initially passed in 1994 that permits the Pentagon to block federal funding to universities that prevent military recruiting on campus.

Prior to the passage of the statute, Harvard and many other law schools required that recruiters who use campus resources comply with the schools’ nondiscrimination policies, which include a protection for sexual orientation. The “don’t ask, don’t tell” prohibits gays and lesbians from serving openly in the armed forces.

The Supreme Court will hear the FAIR suit in December.

The law professors’ brief took no position on FAIR’s argument that the Solomon Amendment breaches law schools’ free-speech rights. Instead, the professors argued that the government has unlawfully given the military a “unique privilege” to disregard any school policies that hinder its recruiting efforts.

“...[T]he government is demanding far more than equality of treatment; rather, it is insisting on being given a special exemption from even-handed antidiscrimination policies,” the 23-page brief stated.

At a press conference yesterday, Loeb University Professor Laurence H. Tribe ’62, a signer of the brief, noted that for years he has taught his students in constitutional law courses that courts should decide cases on statutory grounds when possible.

And in 1977, he said, his constitutional law section included one student whose opinion could sway the outcome of the FAIR case: chief justice nominee John G. Roberts, Jr. ’76.

Professor of Law Janet Halley, an expert on military policy towards gays, said that if the high court sides with FAIR and rules that the Solomon Amendment is unconstitutional, other federal provisions—including Title IX, a 1972 statute that prohibits discrimination on the basis of sex—may be placed in jeopardy.

“If you want Title IX to exist, you need to imagine that Congress can make schools concede some education policy decisions if they take federal funding,” Halley said.

“If the court were to hold that the Solomon Amendment is unconstitutional because schools have absolute freedom to determine education policies, then you can imagine a subsequent case citing that precedent to reduce the scope of—or even invalidate—Title IX’s funding contingency.”

Halley is not listed as a signatory on the professors’ brief, though she said she supports the brief’s arguments.

Another name absent from the list of signatories was Frankfurter Professor of Law Alan M. Dershowitz, who has been an active opponent to the Solomon Amendment since he urged the University to file its own lawsuit against the government last October.

Dershowitz declined to comment for this article.

Last November, a three-judge federal appellate panel sided with FAIR, suspending the enforcement of the Solomon Amendment. But in May, the Supreme Court said it would take up the case, placing the panel’s decision on hold.

Even if the high court rules against FAIR, Solomon Amendment opponents may continue to fight the Pentagon policy in court for years to come, according to the Watson visiting professor of law at Harvard, Stephen B. Burbank ’68.

A tenured professor at University of Pennsylvania Law School, Burbank is the lead plaintiff in a suit that has been placed on hold while the Supreme Court considers the FAIR case.

Burbank, along with 20 fellow law professors and seven students, argued that their university was already in compliance with the Solomon Amendment even before the Bush administration threatened to terminate over $500 million in federal funding to the university in 2003. While the military did not have access to Penn Law School’s career placement office before 2003, Penn’s university-wide career office did arrange interviews between recruiters and law students.

“It is incomprehensible how that could have violated the Solomon Amendment,” Burbank said.

—Daniel J. Hemel contributed to the reporting of this story.

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