HLS To Abide by Court’s Decision

Harvard Law School will aid military recruiters—in violation of the school’s 27-year-old nondiscrimination policy—following a Supreme Court ruling that forced the school to choose between assisting the Pentagon or forgoing over $400 million in federal funds to Harvard.

In an e-mail to students and professors yesterday, Law School Dean Elena Kagan announced the decision to “provide Career Services assistance to the military, as the School does to non-discriminating employers.”

Until 2002, the school required all employers to sign a nondiscrimination pledge as a condition for access to the career placement office. The military, which excludes openly gay and lesbian individuals from its ranks under the “don’t ask, don’t tell” policy, refuses to sign the pledge.

In her message yesterday, Kagan also encouraged students to demonstrate against the presence of recruiters. Her statement came one day after Supreme Court Chief Justice John G. Roberts Jr. ’76 ruled that “law schools remain free under the [Solomon Amendment] to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”

The Solomon Amendment, initially passed in 1994 and most recently updated last year, says that schools receiving federal funds must grant the military “equal access” to students, but it does not define “equal access.”

In oral arguments before the court in December, Justice Anthony M. Kennedy asked the government’s top lawyer, Solicitor General Paul D. Clement, if at, “say, a job fair...the school organizes a line jeering both the recruiters and the applicants, that’s ‘equal access?’”

Clement responded, “I think that would be.”

Clement said the law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.” And Roberts cited Clement’s concession in the court’s ruling.

Kagan wrote in her message that she hopes “many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy.”

Kagan ended her e-mail by expressing her opposition to the “don’t ask, don’t tell” rule. “As I have said before, I believe that policy is profoundly wrong—both unwise and unjust—and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services,” Kagan wrote.

Lambda, the Law School’s gay, lesbian, bisexual, and transgender student group, thanked Kagan for her support, but also called on Harvard to protect students from discrimination on the basis of sexual orientation.

“I’m glad that she made expressly clear her views on the ‘don’t ask, don’t tell policy,’” the co-president of Lambda, Jeffrey G. Paik ’03, said yesterday. “I’m also glad that she acknowledged the right of students to protest and make their views known; it says a lot to the students when the dean comes out and supports them.”

Paik, who is in his third year at Harvard Law, renewed his call for the University to actively support a bill sponsored by Rep. Martin T. Meehan, D-Mass., that would repeal “don’t ask, don’t tell.”

“The burden is on the University to come up with different strategies and see what courses of action it can pursue to protect its students,” Paik said.

Harvard’s chief lobbyist said yesterday that the University had not decided whether to take a position on Meehan’s bill.

“Typically Harvard has had an institutional voice on issues that relate to higher education or to Harvard specifically,” Kevin Casey, Harvard’s senior director of federal and state relations, said.

“Harvard has supported legislation in the past aimed at revising the Solomon Amendment—that is an issue directly related to us,” Casey said. “But we have not taken a position on ‘don’t ask, don’t tell.”

However, the Harvard College Handbook for Students does say that “current federal policy of excluding known lesbian, gay, and bisexual individuals from admission to ROTC or of discharging them from service is inconsistent with Harvard’s values.” And in a December 2004 letter to a gay and lesbian alumni group, University President Lawrence H. Summers called the “don’t ask, don’t tell” rule “offensive to human dignity.”

Casey did not rule out the possibility that Harvard would take a position on Meehan’s legislation. He said that determining Harvard’s legislative agenda is “consultative” and “involves any number of different schools, deans, and faculty.”

The Law School also declined to say what official response it will make to the presence of military recruiters on campus.

“We realize that many people have strong feelings about this issue, and we’re currently talking with students about appropriate responses,” Law School spokesman Michael A. Armini wrote in an e-mail.

The issue will likely take center-stage again in the fall when the military takes part in the school’s job fairs.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.