Senate Mulls Over Solomon Amendment

The Senate this week is considering legislation to strengthen the language of the Solomon Amendment, potentially dealing a setback to gay rights advocates who are challenging the 1996 statute.

Government lawyers have said that the Solomon Amendment allows the Pentagon to block federal funding to universities that limit military recruiters’ access to students.

According to Kevin Casey, Harvard’s senior director of federal and state relations, the University receives more than $400 million annually from Washington in research funds.

Harvard and a host of other universities have long insisted that only employers who pledge not to discriminate on the basis of sexual orientation can gain access to the schools’ official recruiting resources. But the Pentagon’s “don’t ask, don’t tell” policy requires the discharge of openly gay servicemembers, and military recruiters have refused to sign the University’s nondiscrimination pledge.

Harvard officials and government lawyers are involved in ongoing negotiations to resolve a dispute over conflicting interpretations of the Solomon Amendment. But the legislation before the Senate could clarify the 1996 statute’s ambiguous wording.

The current statute only allows the Pentagon to block funding for schools that prevent military recruiters “from gaining entry to campuses, or access to students.” The law does not stipulate that universities must grant recruiters “equal access.”

But tucked inside the massive National Defense Authorization Act, a $422 billion spending package being debated in the Senate this week, is a provision requiring schools to grant military recruiters “access to campuses and to students” that is “equal in quality and in scope to the degree...that is provided to any other employer.”

In March, the House voted 343-81 to pass legislation containing nearly identical language.

At that time, members of Congress, led by Rep. Christopher Cox, R-Calif., assailed Harvard’s policy towards military recruiters and ROTC.

“This bill...might as well be called the Harvard Act—because it squarely addresses the scandal of Harvard University and other schools banishing ROTC and military recruiters from campus,” said Cox, who holds both a law degree and an MBA from Harvard and briefly served on the Business School’s faculty in the early 1980s.

The House bill, H.R. 3966, was introduced by Rep. Mike Rogers, R-Ala. Under Rogers’ proposal, the secretary of defense could ask any school receiving federal funds to allow the Pentagon to establish a Reserve Officer Training Corps (ROTC) unit on campus. If the school refuses, the Pentagon could cut off nearly all federal funding to the university.

But despite resounding bipartisan support for the House measure, “only a small part of the House bill is currently included in the [Senate’s] defense department authorization bill,” said Sharra E. Greer, director of law and policy for the Servicemembers’ Legal Defense Network (SLDN), an organization that coordinates opposition to the Solomon Amendment and the “don’t ask, don’t tell” policy.

A spokesperson for Rogers told The Crimson yesterday that “the House version contained some provisions—including ROTC certification—not included in the Senate version of the legislation.”

“This is a standard part of the legislative process and the two versions will be resolved when the bill goes to conference prior to final passage,” the spokesperson for Rogers said.

Cox is confident that some agreement can be reached so that the final version of the bill coming out of the House-Senate conference will look more like the original H.R. 3966, a spokesperson for the Harvard alum said yesterday.

Under both the proposed House and Senate bills, federal financial aid to individual students would not be affected if schools limit ROTC or military recruitment on campus. The original Solomon Amendment would have cut off aid to students whose schools flout the Pentagon’s requests.

Greer called the student aid exemption “a good piece of a bad law.” She said that independent law schools that do not receive federal research money might be more likely to challenge the Pentagon’s policy once the exemption becomes law.

Rogers included the exemption in the March House legislation. Sentaor Edward M. Kennedy ’54, D-Mass., added similar language to the Senate bill during Armed Services Committee deliberations. Kennedy’s office did not return repeated requests for comment over the past four days.

JAG CLEARANCE

Until 2002, Harvard Law School insisted that the Office of the Judge-Advocate General (JAG), the Pentagon’s legal wing, could not use the school’s official recruiting resources unless the military signed the University’s nondiscrimination pledge.

Instead, the Harvard Law School Veterans’ Association served as a conduit between JAG and students.

But in 2002, the Pentagon told then-Dean of the Law School Robert C. Clark that the University could lose hundreds of millions of dollars in federal funds unless the school gave JAG full access to the school’s resources.

Clark responded by granting JAG an exemption from the school’s nondiscrimination policy.

Harvard officials still say that the Pentagon misinterpreted the Solomon Amendment in 2002.

“It has been our consistent belief that Harvard’s recruiting policies have consistently been in compliance with the Solomon Amendment,” Casey wrote in an e-mail Monday.

According to Casey, the Army sent a letter to Clark in 1998 affirming that the University’s interpretation of the Solomon Amendment was indeed accurate.

In that letter, Army lawyers wrote: “Thank you for providing our military recruiters a degree of access to students that is equal in quality and scope to that afforded to other employers, consistent with regulations.”

Greer said the Pentagon had no need to adopt a stricter interpretation of the Solomon Amendment in 2002.

“There has been no evidence whatsoever that the Defense Department is having difficulty recruiting on campuses, at law schools, or from graduate programs,” she said.

COURT REPORT

A majority of the Law School’s faculty signed a letter in October urging University President Lawrence H. Summers to take legal action against the Pentagon in order to restore the pre-2002 recruiting framework.

While Summers has vehemently denounced the military’s “don’t ask, don’t tell” policy and criticized the Solomon Amendment, he has repeatedly stated that the University will not take the adversarial step of filing suit against the federal government.

But last year, the Forum for Academic and Institutional Rights (FAIR)—a network of 20 law schools—took Secretary of Defense Donald H. Rumsfeld to court in an effort to suspend enforcement of the Solomon Amendment.

In November, U.S. District Court Judge John C. Lifland—a 1957 graduate of Harvard Law School—denied FAIR’s motion to overturn the Pentagon’s policy.

However, FAIR cheered one part of Lifland’s opinion, in which the judge suggested that the Pentagon had misinterpreted the Solomon Amendment. But if the provision currently before the Senate becomes law, Greer said, that section of Lifland’s opinion might become moot.

The Senate bill “ends the discussions about whether the [Pentagon] regulations are authorized by the [Solomon] statute,” Greer said.

She said Rogers specifically targeted his legislation to influence the FAIR suit.

But Harvard officials believe that even if the pending legislation becomes law, the University can still hold the military to the same nondiscrimination requirement that other recruiters face.

According to Casey, the House and Senate legislation would not change Harvard’s interpretation of the Solomon Amendment.

Meanwhile, FAIR—bolstered by friend-of-the-court briefs from Harvard Law School professors and the student gay rights group Lambda—has appealed Lifland’s decision to the Third Circuit Court in Philadelphia.

In January, FAIR’s lawyers told The Crimson that a three-judge panel from the Third Circuit would hear oral arguments on the appeal in mid-March, but the Court has yet to take up the case. FAIR President Kent Greenfield, a law professor at Boston College, wrote in an e-mail last week that the Philadelphia-based court will likely hear arguments in the suit next month.

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