Rally Decries Military Policy

Frankfurter Professor of Law Alan M. Dershowitz, speaking at a protest organized by student gay rights activists Friday afternoon, called on his colleagues to file a lawsuit against the Pentagon to block military recruiters from forcing their way onto Harvard’s campus.

Just steps away from Langdell Library, where the rally took place, military recruiters wrapped up three weeks of interviews with Harvard Law School students at Griswold Hall.

For years, Harvard restricted Pentagon access because the military’s “don’t ask, don’t tell” policy toward gays violated the Law School’s nondiscrimination rules.

Speakers at the rally assailed the Solomon Amendment, which was signed into law by President Clinton in 1996 and empowers the Pentagon to cut off federal funding for universities that restrict military recruiters’ access to students. Faced with a Pentagon threat to block hundreds of millions of dollars in funding to Harvard, the Law School backed down from its policy in 2002.

Friday’s rally came less than a week after both houses of Congress passed legislation strengthening the provisions of the Solomon Amendment.

Congressional sponsors of the new measure—which also mandates that schools receiving funds honor Pentagon requests to establish Reserve

Officer Training Corps (ROTC) facilities on campus—said the legislation was specifically targeted at Harvard, which banished ROTC from campus 35 years ago.

The measure is attached to the Defense Authorization Act, a $446 billion spending package that President Bush is all but certain to sign into law in the coming weeks.

When the House debated the measure in March, Rep. Christopher Cox, R-Calif., a former member of the Harvard Business School faculty and co-sponsor of the bill, said the legislation “squarely addresses the scandal of Harvard University and other schools banishing ROTC and military recruiters from campus, while cashing Uncle Sam’s checks for billions of taxpayer dollars each year.”

Kevin Casey, Harvard’s senior director of federal and state relations, said this spring that the military has not requested permission to set up a ROTC station on campus. Harvard students currently attend ROTC at MIT, along with students from several area colleges.

Casey wrote in an e-mail last night that the University is already in compliance with the standards set by last week’s Congressional bill, and “the legislation does not require any further action by Harvard.”

When the Faculty of Arts and Sciences voted to send ROTC packing in 1969, professors railed against the military’s handling of the Vietnam War. Today, the fight over military recruiting on campus centers on the armed forces’ controversial “don’t ask, don’t tell” policy, which requires the discharge of openly gay and lesbian service members.

“The government shouldn’t use the power of the purse strings to force educational institutions to renounce their most foundational principles,” Dean Elena Kagan told protesters Friday.

Kagan was one of 54 Harvard Law School faculty members who signed a friend-of-the-court brief in January backing the Forum for Academic and Institutional Rights (FAIR), a nationwide network of 20 law schools suing Defense Secretary Donald H. Rumsfeld and five other Bush cabinet members to halt enforcement of the Solomon Amendment.

Last October, a majority of the Law School faculty signed a letter urging University President Lawrence H. Summers to “join or initiate” litigation challenging the Pentagon policy. Dershowitz and others had also called for such a lawsuit at a rally in October 2002.

The professors’ brief argued that the school had been in compliance with the Solomon Amendment even prior to Harvard’s 2002 decision to waive its nondiscrimination policy for military recruiters. Before then, the Harvard Law School Veterans Association organized meetings between students and Pentagon officials, but the school’s Office of Career Services (OCS) played no part in the process.

The legislation passed last Saturday seems designed as a response to the Harvard professors’ January brief.

The brief noted that the original wording of the Solomon Amendment only barred funding to schools that “prohibit” or “in effect prevent” military recruitment on campus. The professors argued that the law did not require Harvard to actively assist recruitment by giving the Pentagon access to OCS resources.

But Professor of Law Janet Halley, who signed the brief, said at the rally Friday that the pre-2002 arrangement, even if permitted by the Solomon Amendment, was morally unjustifiable. She said Harvard’s practice of accommodating the military through the Veterans Association had reduced the school’s nondiscrimination policy to “transcendental nonsense.”

Under the new legislation, military recruiters can demand access to students “at least equal in quality and scope” to that which schools provide other employers.

Asked if the legislation will impact the FAIR suit, Bloomberg Professor of Law Martha L. Minow—who spearheaded the filing of the friend-of-the-court brief—said that Harvard faculty “are studying the effect of the recently adopted law and inquiring about the Defense Department’s interpretation of it, so...it is too early to answer.”

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.