HLS Professors Will Soon File Solomon Suit

University President Lawrence H. Summers explained the logic behind his decision to keep the University out of the growing legal battle over military recruiting on campus yesterday, while professors from Harvard Law School (HLS) vowed to file a suit of their own.

Last night, Climenko Professor of Law Charles J. Ogletree called such a suit “imminent.”

“Everyone is very much geared up to go forward and I can tell you that the intensity is growing and the commitment to doing this is unwavering,” Ogletree said.

Last month, more than half of the HLS faculty signed a petition urging Summers to add Harvard’s weight to the flurry of lawsuits filed this fall challenging the 1996 Solomon Amendment, which allows the Pentagon to cut off federal funding to universities that thwart military recruitment efforts.

But last week, Summers told six law professors that the University would not file suit.

In an interview yesterday, Summers said that while the reasons to challenge the amendment are strong—proponents of litigation say that the military’s policy on gays fundamentally conflicts with the law school’s policy on non-discrimination—it is not the University’s place to challenge the federal government on this issue.

“The attitude of members of the University community toward the ‘don’t ask, don’t tell’ policy is very clear and we all look forward to the day when any American regardless of their sexual orientation as regardless of their race or religion can serve in the armed forces,” Summers said.

He added that his office would release a letter this week to further explain his logic.

“The University as an institution is not taking legal action because it seems to us that the question is heavily a political one in terms of the decisions of the Congress and executive branch,” Summers said.

But Summers said that while the University will not take its case to court, Harvard is still discussing the issue with Washington officials.

“The law school has fully pursued the administrative remedies with respect to the interpretation of the statute, and beyond that, the University has chosen not to enter into a legal confrontation with the federal government,” Summers said. “We are certainly making our views known and discussing this both with the executive and legislative branches.”

In August of 2002, HLS announced that it would exempt military recruiters from its nondiscrimination requirements because of a Pentagon threat to follow through on the amendment.

If the government were to withdraw federal funds from Harvard, it would cost the University dearly—as federal funding amounted to $412 million in fiscal year 2003.

Summers said he had discussed the matter with the Harvard Corporation, the University’s highest governing board.

Critical Mass

Several HLS professors said yesterday that they were disappointed in Summers’ decision and said they would sign onto a faculty lawsuit. Law professors at the University of Pennsylvania and at Yale have launched faculty lawsuits challenging the amendment.

In addition, New York University’s law school and 14 other schools filed suit in September as the Forum for Academic and Institutional Rights.

“It is regrettable that Harvard University is among those institutions willing to tolerate discriminatory practices against its students,” Ogletree said.

“I don’t think the President’s decision will at all deter the law faculty from fighting this amendment with a serious lawsuit.”

Ogletree said he plans to sign onto the suit and predicts that he will be joined by dozens of colleagues.

“We can’t spend our days talking about policies of non-discrimination and then tolerate it in our personal lives,” he said.

Last fall, Frankfurter Professor of Law Alan M. Dershowitz said that he was “anxious” to mount a suit against the government, but decided to wait until the cause had more support from the gay community.

Dershowitz said he did not sign the letter delivered to Summers.

“My views are already well-known, and I didn’t think it was necessary for me to sign the petition,” said Dershowitz, who says that he will wait to see the lawsuit his colleagues craft before signing onto it.

Dershowitz added that he thinks it is only worthwhile to file a suit if it has a chance of being taken seriously.

“It has to be solidly based. One group that could easily file a great suit is gay and lesbian students at HLS—they are direct victims of this.”

—Staff Writer Lauren A.E. Schuker can be reached at schuker@fas.harvard.edu.