Harvard Law School faculty members are considering filing a suit against the Department of Defense over the constitutionality of the 1995 Solomon Amendment, which forces law schools to give military recruiters equal access to their students, Harvard professors said Wednesday.
Discussions about the potential suit come several weeks after 47 Harvard Law professors sent a letter to Harvard President Lawrence Summers on Oct. 22, asking that Harvard initiate or join litigation challenging the Solomon Amendment. Two student groups at Yale Law School, 44 Yale Law professors and a group of law professors and students at the University of Pennsylvania have all filed separate suits against the Department of Defense on similar grounds.
The Solomon Amendment states that any university whose law school restricts military recruiters’ access to students is liable to lose all federal funding. Yale Law School, like many law schools across the country, suspended its nondiscrimination policy in the fall of 2002 after the administration of U.S. President George W. Bush ’68 began to strictly enforce the Solomon Amendment. Yale Law School officials had previously refused to allow military recruiters full access to the school’s career office because recruiters, citing the military’s “don’t ask, don’t tell” policy on homosexuality, refused to sign the the Law School’s nondiscrimination clause.
Summers recently decided that Harvard would not take legal action against the Solomon Amendment and said he will release a letter later this week explaining his reasoning, Harvard spokesman Joe Wrinn said.
Harvard Law professor Christine Desan LAW ’87, one of the authors of the letter to Summers, said it was “likely” that faculty members would file suit but that no final decision has yet been reached.
“We are considering litigation options,” Desan said.
Should Harvard faculty members decide to file suit against the Department of Defense, their suit will mark the fifth legal action challenging the Solomon Amendment in recent months. In addition to the Yale and University of Pennsylvania suits, the Forum for Academic and Institutional Rights, or FAIR, a largely anonymous coalition of law schools and students, filed a separate suit on Sept. 19.
Robert Burt, a lead plaintiff in the Yale faculty suit, said he would be pleased if Harvard Law faculty were to file their own Solomon Amendment suit.
“The more the merrier,” Burt said. “It’s very important that people from institutions all around the country stand up and speak.”
Burt said any Harvard suit would fall under the jurisdiction of the U.S. Court of Appeals, First Circuit. He said it could be beneficial for plaintiffs if the Solomon Amendment cases are heard in many circuit courts because it may increase chances for a favorable judgment.
The Yale suits will be heard in the Second Circuit, while the FAIR and University of Pennsylvania suits are in the Third Circuit.
Burt said he had not heard about Summers’ decision not to participate in Solomon Amendment litigation, but Burt said such a decision would be regrettable.
Amanda Goad, president of Harvard Law School Lambda, a group promoting equal rights for peoples of all sexual orientations, said she was disappointed that Summers had declined to involve Harvard in any litigation against the Department of Defense.
But Goad said she thought the possibility of a faculty lawsuit was a “good thing.”
“Ideal would have been a suit with [Harvard's] name on it, next a faculty suit, next a student suit,” Goad said.
Both Yale and Harvard have a significant amount of funding at stake with respect to the issue. Yale receives over $350 million in federal funding each year. Harvard receives over $300 million in federal funds.