Constitutional, But Immoral

On Monday, the Supreme Court voted unanimously to uphold the Solomon Amendment, a 1994 Congressional law that threatens to withhold all federal funding for colleges and universities that refuse to offer military recruiters––who are prohibited from enlisting openly gay men and women––equal access to campus recruiting resources. This decision, while legally sound, is nonetheless a great disappointment, as it will force Harvard Law School (HLS) to acquiesce to an employer’s willful violation of the school’s nondiscrimination policy or forgo over $400 million of federal funding annually.

In his written opinion, Chief Justice John G. Roberts ’76 dismissed both the arguments made by the Forum for Academic and Institutional Rights (FAIR)—of which Harvard is not a part—and those offered in an amicus brief signed by more than forty HLS faculty. While FAIR argued that the Solomon Amendment is unconstitutional because it inhibits universities from exercising their right to speak freely, HLS faculty offered a statutory argument, contending that HLS currently affords military recruiters equal access to its resources by requiring the Armed Forces to sign the same nondiscrimination pledge as other recruiters. In rejecting both of these arguments, Roberts and his associate justices have left HLS with no alternative but to aid recruiters or lose 15 percent of the University’s operating budget.

The United States Armed Forces’ “Don’t Ask, Don’t Tell” policy, which prohibits openly gay men and women from enlisting in the military, is an affront not only to HLS’s nondiscrimination policy, but to the standards of tolerance and equal opportunity so central to our University community. The Solomon Amendment, however, prohibits the University from resisting this policy by banning recruiters. Harvard is not in a position to forgo $400 million each year. These funds currently support medical and scientific research critical to millions of people, and to our common national interests. Though the outcome of the court’s decision is regrettable, Harvard has made the correct decision by agreeing to aid military recruiters on campus.

HLS Dean Elena Kagan ought to be commended, moreover, for urging all members of the Harvard community to robustly oppose the military’s discriminatory employment policies. Her suggestion that students register their disapproval of “Don’t Ask, Don’t Tell” by demonstrating against the recruiters seizes upon the single element of Roberts’ opinion that offers cause for hope: its assertion that HLS will “remain free…to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”

Members of the Harvard community ought to galvanize behind Dean Kagan’s call for protest. But students and faculty members should not be alone in organizing against the military’s unwise and discriminatory policy. The University ought to commit itself formally to supporting Congressional efforts to change “Don’t Ask, Don’t Tell,” either by lobbying directly or by organizing academic symposia in opposition to the policy. We remain hopeful that, through such efforts, the University may help to change an obviously discriminatory policy, render the Solomon Amendment unnecessary, and protect the dignity of all members of our community.