Harvard Law profs urge school to join litigation



Forty-six Harvard Law professors sent a letter to Harvard University President Lawrence Summers Wednesday night, urging Harvard to participate in litigation against the U.S. Department of Defense. Harvard Law, like many law schools across the country, has reversed its nondiscrimination policy and allowed military recruiters on campus to prevent the loss of federal funds.

Under the 1995 law known as the Solomon Amendment, any university that bars military recruiters from its campus is liable to lose all federal funding. Harvard Law, Yale Law School and many other law schools nationwide stopped restricting military recruiters’ access after 2001, when the administration of President George W. Bush ’68 began to aggressively enforce the amendment.

Many law schools had restricted military recruiters’ access to their career offices because the military’s “don’t ask, don’t tell” policy on homosexuality prevented them from adhering to universities’ nondiscrimination clauses.

Yale receives more than $350 million in federal funds each year. Harvard University receives more than $300 million.

The letter to Summers, which was prepared by Harvard professor Christine Desan, includes a history of the Solomon Amendment, which led in 2002 to the readmission of military recruiters to Harvard Law’s Office of Career Services.

“We urge you to initiate or join litigation designed to challenge the Solomon Amendment,” the letter said.

If Harvard takes legal action against the Solomon Amendment, it would be the fourth suit brought against the Defense Department in recent weeks. Forty-four Yale Law professors initiated a suit against the Defense Department last Thursday, following an Oct. 1 suit filed by a group of professors from the University of Pennsylvania Law School.

Another legal action challenging the Solomon Amendment on similar grounds was filed against the Defense Department and five other federal agencies on Sept. 19, with the Forum for Academic and Institutional Rights, an anonymous coalition of law schools and law faculty, as the leading plaintiff.

Yale Law and Harvard Law have both publicly stated that they are not members of FAIR.

Yale President Richard Levin said the University has been trying to resolve the JAG recruitment issue without officially joining the lawsuit.

“While we have not joined the law suit, we — seek favorable conditions through the Department of Defense,” Levin said.

Levin said he will be involved in a meeting with Defense Department officials “soon,” in the culmination of a number of meetings already held between Yale and Defense Department officials.

Amanda Goad, president of Harvard Law School Lambda, a group promoting equal rights for peoples of all sexual orientations at Harvard Law, said she was pleased with the faculty letter and hoped that it would lead to legal action by Harvard.

“I think it was a bad decision on Harvard’s part to not join FAIR,” Goad said. “One of the reasons behind Harvard not joining FAIR was that they wanted to maintain freedom of litigation. Many of us involved think it would be more effective for the university to file suit than for the faculty to [do so].”

Goad said 13 student groups also collaborated on a letter encouraging Harvard to “stand up for its longstanding tradition of nondiscrimination by actively opposing enforcement of the Solomon Amendment regulations.” The groups sent the letter to Summers along with the faculty letter.

Yale Law Professor Robert Burt, the lead plaintiff in the Yale faculty lawsuit, said he had not yet heard of the Harvard faculty letter but was pleased that more law professors from other universities were opposing the Solomon Amendment.

“I expect [the Harvard faculty members] feel much the same way we do — that all things considered, we would prefer that the University speak with the voice of the institution [against the amendment],” Burt said.

Burt said the Harvard professors may have drawn their inspiration from the three pre-existing lawsuits.

“I don’t want to suggest that Harvard Law faculty are incapable of thinking on their own, but it’s also the case they we were working on our lawsuit before FAIR, before the [University of Pennsylvania] lawsuit,” Burt said. “[But] the more faculty, the more institutions involved, the better.”

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