In Reversal, Harvard Takes Legal Action on Solomon Case

Two years after University President Lawrence H. Summers said that Harvard would stay out of the legal battle over the Solomon Amendment on campus military recruitment, Harvard joined a brief that was submitted to the Supreme Court Wednesday urging the justices to rule that the controversial amendment is unconstitutional.

Summers told The Crimson in November 2003 that “the University as an institution is not taking legal action because it seems to us that the question is heavily a political one.” Since then, Summers made personal phone calls to senior Pentagon officials to try to reach a compromise on military recruitment, according to the University’s vice president for government, community, and public affairs, Alan J. Stone.

But when the Pentagon threatened to cut off over $400 million in federal funding to the University this summer, Harvard joined with Yale and five other schools on a friend-of-the-court brief.

The brief is especially significant because the counsel of record for the schools, former solicitor general Seth P. Waxman ’73, has argued over 45 cases before the high court and is likely to have the ears of justices.

Waxman is also a member of Harvard’s Board of Overseers, which is the less powerful of the University’s two governing bodies. He told The Crimson yesterday, “I do not ever comment on-the-record on litigation that I have in the Supreme Court.”

The Solomon Amendment says that if a school receives federal funds, it must grant Pentagon recruiters “equal access” to students. Until this past Tuesday, Harvard Law School had refused to provide assistance to any recruiter that discriminates on the basis of sexual orientation. The Pentagon’s “don’t ask, don’t tell” policy bars openly gay and lesbian individuals from serving in the military.

The Forum for Academic and Institutional Rights (FAIR), a group of over two dozen law schools that does not include Harvard, filed a suit against the Bush administration in Sept. 2003 charging that the amendment is unconstitutional.

Waxman’s brief, filed in support of FAIR, argues that the amendment is “a command rather than an inducement” because private universities receive about 60 percent of their research funding from the federal government.

Several previous rulings by the high court “plainly render constitutionally suspect any funding condition that coerces compliance,” according to the brief.

The FAIR suit and the Waxman brief argue that the Solomon Amendment violates schools’ academic freedom rights by effectively silencing universities that want to “send a message” that is critical of the “don’t ask, don’t tell” policy.

But according to Professor of Law Janet Halley, FAIR’s argument could conceivably undermine, for example, the high court’s 1983 decision in Bob Jones University v. U.S., which held that the federal government could deny tax-exempt status to a South Carolina college that prohibits interracial dating.

Halley said “it’s a risk, not a certainty,” that a conservative judge would construe FAIR’s argument to undermine federal antidiscrimination mandates.

Waxman’s brief argues that the high court can apply the “unconstitutional conditions” doctrine to overturn the Solomon Amendment without simultaneously undermining the Bob Jones ruling and other federal anti-discrimination policies, such as the 1972 gender equity statute known as Title IX, according to Harvard’s general counsel, Robert Iuliano.

Waxman’s brief acknowledges that the federal government has a “perhaps compelling interest” in ensuring that its funds are not used to support racial or sex discrimination. But, according to the brief, the Solomon Amendment is not needed to prevent federal funds from going to support “some wrongful conduct.”

Halley said “there are ways that you can make the distinction” between the anti-Solomon Amendment argument and the Bob Jones case. But, she added, “The danger is that the court might not.”

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