Upping the Ante

After the Pentagon’s recent decision to enforce provisions of the Solomon Amendment, a 1994 law that empowers the federal government to withhold funding from schools that don’t allow military recruiters access to on-campus resources, Dean Elena Kagan of the Harvard Law School (HLS) faced a difficult choice. She could compromise the Law School’s anti-discrimination policy by allowing military recruiters onto the HLS campus. Or, she could force the University to forgo $400 million in federal funding (15 percent of Harvard University’s operating budget) to make a statement against the military’s discriminatory policies towards gays and lesbians. Obviously, this was not her choice to make. The financial well-being of the University takes precedent over the policies of any individual school. Nevertheless, these recent developments only further underline the critical need for the entire University community to act more aggressively to overturn the Solomon Amendment and its undue encroachment upon the right of academic institutions to enforce their own internal policies and protect their students’ civil rights.

According to the military’s “Don’t Ask, Don’t Tell” policy, homosexuals are prohibited from serving openly in any of the armed services. In the civilian world, this type of discrimination has long been considered unconstitutional; only in the military does this archaic and divisive attitude toward the gay community persist as a matter of protocol. The Pentagon’s refusal to alter its position concerning the service of homosexuals in the military is outrageous.

Even more outrageous, however, is the Pentagon’s draconian enforcement of a statute that essentially forces academic institutions to condone the suppression of a minority group’s civil rights. By threatening to withhold its grants, the federal government is implying that it is more important that military recruiters are given on campus resources than it is to support the many humanitarian, medical, and academic efforts that these grants underwrite at Harvard. Remove the politically charged debate surrounding the Solomon Amendment from the equation, and we suspect even staunch Solomon supporters would trade a few extra HLS recruits for better heart disease treatments (just one current project at the Harvard Medical School).

Already, many in the University have responded by filing or promising to file friend-of-the-court briefs urging the Supreme Court, scheduled to hear a challenge to the constitutionality of the Solomon Amendment on December 6, to overturn the law. We commend both University President Lawrence H. Summers and the forty HLS professors who are filing these briefs for their rapid and proactive response.

More, however, can and must be done. Throughout the Solomon controversy, the University has conspicuously resisted joining other schools who are suing the government. If President Summers does not feel comfortable taking this sort of stand, then he and others within the University should seek other ways to show that Harvard is serious about standing behind the civil rights of its students. As a first step, Summers and Dean Kagan could invite retired military officials, lawyers, and members of academia to join in a summit discussing the best means to overturn the military’s “Don’t Ask, Don’t Tell” policy.

The battle over the Solomon Amendment is a battle of will as well as a battle of jurisprudence. It was only the Pentagon’s recent reinterpretation of the Solomon Amendment—a reinterpretation informed by political and legal motives—that forced Dean Kagan to acquiesce. Protest from the country’s most prominent universities will not go unnoticed. But it will take more than friend-of-the-court briefs to undo the law. The University should stop letting other schools fight a battle that the Harvard community clearly cares about and bring its considerable clout to bear on behalf of its students.