Harvard lifts JAG ban to keep federal funding

Reversing a decision it made last year, Harvard Law School will allow military recruiters on its campus after the Pentagon threatened to cut off the university’s substantial federal funding under a law that denies grants to educational institutions hindering military recruitment.

Under its non-discrimination pledge, Harvard Law School decided to ban Pentagon recruiters from using its Office of Career Services in November 2004 because the institution disagreed with the military’s “don’t ask, don’t tell” policy on homosexuality. But this summer, officials at the U.S. Department of Defense approached law school officials and said they would withhold all possible funding to the university — more than $400 million per year — if the law school did not allow recruiters to use campus resources to reach Harvard law students interested in the military’s Judge Advocate General program, Harvard Law School Dean Elena Kagan said in a statement released Tuesday.

“As a result, I have decided … that we should lift our ban and except the military from our general non-discrimination policy,” Kagan said in the statement.

In 2002, the Yale Law School made a similar allowance, permitting on-campus military recruiting when the government threatened federal funding cuts. But the school reinstated its recruitment ban earlier this year after a federal court ruled the Solomon Amendment — which denies most federal grants and contracts to colleges and universities that ban military recruiters from campus — unconstitutional and granted the school a temporary injunction pending a Supreme Court ruling on the constitutionality of the amendment.

The University is currently the only institution in the country with an injunction protecting it from the loss of federal funds pending the Supreme Court’s final decision.

Kagan said she believes the amendment is “unwise and unjust,” but chose to comply with the law to keep the government from cutting off its funding, most of which goes to the university’s medical and public health schools. Yesterday, Kagan and more than 40 other Harvard Law professors released an amicus brief on behalf of the Forum for Academic and Institutional Rights, a coalition of law schools that will argue against the amendment before the Supreme Court later this year.

“I think what’s going on is just that the DoD is making it clear that they’re not going to relax the enforcement of the regulation, even during the time that the case is before the Supreme Court,” said FAIR President Kent Greenfield, a Boston College law professor. “We tried to work with them to try and work out some sort of compromise over the past several years, and they have flatly refused.”

Nearly 50 Yale law professors had already filed an amicus brief on behalf of FAIR in 2003. The High Court’s ruling could affect the separate suit brought on by a group of Yale law professors that is now pending, said Robert Burt, a Yale law professor and lead plaintiff in that case.

Last week, the Pentagon announced that New York Law School was ineligible for federal funding because it has refused to comply with the Solomon Amendment. Currently, the only three institutions ineligible for grants are small independent law schools who have refused to comply with the amendment.

Harvard Law School’s non-discrimination policy is 26 years old and the school has barred the Pentagon from its campus for years, Kagan said. The law school previously allowed recruiters back on campus between 2002 and 2004.

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