Pressure Builds Against Military Recruiting

University President Lawrence H. Summers told six law professors on Monday evening that he does not intend to join or initiate litigation challenging military recruitment on campus.

Summers faces mounting pressure from students and faculty, who charge that the military’s “don’t ask, don’t tell” policy towards gays and lesbians contradicts the University’s commitment to non-discrimination.

Yesterday morning, leaders of a Harvard Law School (HLS) civil rights group delivered a petition bearing 1,082 student and faculty signatures to Mass. Hall urging Summers to file suit against the Pentagon.

Monday’s Mass. Hall discussion came less than a month after a majority of HLS’ faculty signed a letter calling on Summers to add Harvard’s weight to the growing number of suits challenging the 1996 Solomon Amendment, which allows the Pentagon to deny federal funding to universities that thwart military recruitment efforts.

Opponents of the statute claim that it unconstitutionally overrides law schools’ nondiscrimination policies, which require that recruiters treat employees equally on the basis of sexual orientation.

Summers told professors Monday that although he would not discourage faculty from independently filing suit, Harvard would not now launch its own legal challenge, according to University General Counsel Robert W. Iuliano, who also attended the meeting.

“[F]or a variety of institutional considerations, including the partnership that exists between universities and the federal government in a number of important areas, the university itself does not expect to take the adversarial step of initiating litigation,” Iuliano wrote in an e-mail to The Crimson.

According to Professor of Law Christine A. Desan, who organized the HLS faculty’s letter to Summers last month, professors are currently mulling the possibility of filing a suit independently of the University’s central administration, as Yale Law School professors did in October.

The more recent petition effort, spearheaded by the HLS students’ civil rights group Lambda, comes as a barrage of litigation challenging the Solomon Amendment—including suits filed by students and faculty at Yale and University of Pennsylvania Law Schools—weaves its way through the judicial system.

Petitioning for Change

Lambda members are also considering the possibility of filing suit themselves, although the group’s president, second-year law student Amanda C. Goad, said that from a legal perspective, “the ideal would be Harvard signing onto the suit.”

According to Goad, Lambda members and professors are closely collaborating to devise a legal game plan for challenging the Pentagon’s policy.

Half a dozen HLS students, under the direction of Bloomberg Professor of Law Martha L. Minow, are researching “the relative merits of different types of suits,” Goad said.

She added that the anti-Solomon Amendment movement has also been bolstered by support from Tyler Professor of Law Laurence H. Tribe, a constitutional law expert who has helped coordinate faculty strategy.

But Lambda has encountered setbacks in its effort to organize student opposition to the statute.

The Law School Council (LSC), a student government organization, this fall voted down by a 17-14 margin a Lambda-sponsored resolution urging HLS to join a coalition of law schools which has filed suit against the Department of Defense.

Goad said the resolution’s defeat largely rested on a “procedural matter” and that first-year representatives were reluctant to politicize the LSC’s operations.

“We would like to raise [the resolution] again,” Goad said.

She noted that Lambda achieved considerable success in coordinating petition efforts with the Harvard Bisexual, Gay, Lesbian, Transgender and Supporters’ Alliance (BGLTSA), an undergraduate group.

Undergraduates, medical school students and Kennedy School students each delivered more than 100 signatures, Goad said.

Of the 1,082 total signatures, a majority came from the HLS student body.

BGLTSA co-chair Stephanie M. Skier ’05 said that her organization garnered even more signatures than appeared on the petition, but some were received after the deadline set by Lambda had expired.

“Each signature probably represents five or 10 undergraduates who support this initiative,” Skier said.

She noted that BGLTSA has more than 500 members, nearly all of whom she said oppose the Solomon Amendment.

The number and diversity of signatories “is a clear indication that this issue is important to a lot of people and that it is something that Summers needs to take action on,” Goad said.

FAIR and Balanced

The Forum for Academic and Institutional Rights (FAIR), a network of 15 law schools and faculties, joined with a professors’ group in September to file suit in U.S. District Court in Newark, N.J., claiming that the Pentagon’s threats infringed upon educators’ First Amendment rights.

After Judge John C. Lifland, presiding over the FAIR litigation, rejected the Defense Department’s motion to dismiss the lawsuit last Wednesday, some opponents of the Solomon Amendment predicted that other universities would be encouraged to file suit.

Lifland’s opinion suggested that he concurred with FAIR’s claims that Secretary of Defense Donald H. Rumsfeld has overstepped his Congressional mandate.

Rumsfeld has asserted that the Solomon Amendment grants him the power to cut off all federal funds for universities that inhibit military recruitment at their law schools.

Lifland said that Rumsfeld can block all federal funding to any law school that flouts the statute, and he can cut off Pentagon funding to other branches of the university as well.

But the judge said that the Pentagon cannot control other agencies’ appropriations to university programs apart from the law school.

Under Lifland’s interpretation of the statute, Harvard would lose only a small percentage of its federal research funding. In Fiscal Year 2002, only 4.2 percent of the University’s government support—roughly $16.6 million—came from the Defense Department, according to the University Fact Book.

That figure contrasts starkly with the $328 million that the University received from all federal agencies in Fiscal Year 2002—the total amount that would be at risk under Rumsfeld’s reading of the amendment.

Lifland also expressed skepticism towards FAIR’s constitutional claims and rejected the group’s request for a temporary injunction to halt enforcement of the Solomon Amendment.

Despite mounting opposition to the amendment, the Defense Department vowed yesterday that the military would hold fast to its recruitment policies.

“The opinion [issued by Lifland] is still under review and future plans have not changed at this time,” Pentagon spokesperson James Turner wrote in an e-mail to The Crimson.