Legal challenges to Solomon mount

BY CLINTON DICK

Less than two weeks after a group calling itself FAIR filed suit against the Department of Defense challenging the 1996 Solomon Amendment, a group of 21 law professors and six students from the University of Pennsylvania filed their own lawsuit against the government arguing the amendment forces the university to abandon its non-discrimination policy. At stake is $500 million of federal funding to the university and the school’s own commitment to protecting gay and lesbian students from employers that openly discriminate against them.

The chronology of the suit is a familiar story to what many universities experienced throughout the country. While not providing direct assistance to military recruiters, Penn Law School adopted a 1998 policy that allowed these same recruiters to contact and interview law students on their own. The policy worked until the government alerted the university that it was not in compliance with the Solomon Amendment and risked losing its federal funding.

In a response letter to Col. Daniel B. Fincher of the Air Force, who had written a letter to the university in January of this year notifying them they were not in compliance with the law, the university asserted that the military’s access to students was “equal in quality and scope to that afforded other employers,” but that the university “now understand[s] . . . that the military is taking the position that ‘equal’ access means ‘identical access,’ Shannon Duffy of Law.com quotes the school’s letter.

In a copy of the plaintiffs’ complaint obtained by The Record, the plaintiffs seek two types of relief: Either the court should “issue a declaratory judgment that the Law School’s policies and practices in effect from 1998-2003 are in compliance with the Act and that termination of federal funding would be impermissible under the Act,” or “a declaratory judgment that the Act violates plaintiff’s rights to free speech, association, and academic freedom under the First Amendment … “

Prof. Stephen Burbank, one of the faculty plaintiffs, said in the press release, “The defendant’s current interpretation of the Solomon Amendment serves no legitimate governmental interest. By contrast, the coercion of the Law School to abandon its policy against non-discrimination . . . inflicts serious harm on the plaintiffs, as it does on other members of this academic community.”

In an interview with The Record, Prof. Howard Lesnick, who is another university professor joining the suit, was asked who decided the lawsuit was needed. “In a very real sense it was the military,” Lesnick answered. “By abrogating the five-year working arrangement by which its recruiters had full access to our students . . . without the participation of the Law School’s Career Planning Office, to whom our anti-discrimination policy applied.”

Lesnick continued, “I believe that the DOD position lacks legal basis, and does serious injury to our educational program and our students. As a teacher of law, I think it appropriate to place that claim before a court rather than simply let this coercive maneuver go unchallenged.”

Lesnick asserted the law had not changed, “and a lawsuit is a means of bringing to a court our contention that the arrangement complies with the Solomon Amendment and that the DOD position is legally without basis.”

While Penn Law School cannot file a suit independent of the university, Lesnick says there is no plan to get the whole university involved.

According to the group’s press release, the plaintiffs in the suit, Burbank v. Rumsfeld, are “represented by attorneys David Rudovsky, a Senior Fellow at Penn Law School, Kermit Roosevelt, an assistant professor of law at Penn Law School, and Richard L. Berkman, Juliet Sarkessian and Tracey R. Gainor from the Dechert law firm in Philadelphia.”

* * *

In the meantime, Dean Kagan is clarifying her own views on HLS’s refusal to join the FAIR lawsuit. In a letter to the HLS community sent via e-mail on Monday, Kagan detailed the story of how the military had been barred from recruiting on campus as a result of the Law School’s 1979 non-discrimination policy.

The alternative means available to military recruiters worked for several years until the Bush administration decided to hold universities accountable for preventing on-campus military recruitment. At issue was a significant amount of federal funding. Kagan writes that while “the Law School does not receive significant federal funding” and student federal loans would not have been bothered, the university “receives about 16% of its operating budget from the federal government,” including medical and scientific research funding for the Medical School and the School of Public Health.

Former Dean Robert Clark made an exception to the non-discrimination rule, Kagan writes, and she left the exception in force “because of the enormous adverse impact a prohibition on military recruitment would have on the research and educational missions of other parts of the University.”

Kagan used the remainder of her letter to state her “deep distress” and abhorrence over the continued discriminatory policy of the military. Kagan writes, “The importance of the military to our society – and the extraordinary service that members of the military provide to all the rest of us – makes this discrimination more, not less, repugnant.”

“This is a profound wrong – a moral injustice of the first order,” Kagan continues. “And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.”

Kagan ended by reaffirming the Law School’s commitment “to the principle of equal opportunity for all persons, without discrimination on the basis of sexual orientation.” She said the Law School continued to oppose the military’s discriminatory recruitment policies and that “no one should understand the presence of the military on campus as reflecting any change in the strength of this opposition.”

Amanda Goad, President of Lambda, said she appreciated that Kagan took time out to email the HLS community about this issue, but “she’s not saying anything about proactively trying to change the bad situation, which bothers me a lot.”

“Even Dean Clark, in his equivalent letter on August 26, 2002, promised to talk to Lambda and others about ‘constructive measures’ the school could take to support its nondiscrimination policy,” Goad said. “By not saying even that, Kagan looks like she’s backing down.”

Goad praised the University of Pennsylvania professors and students for “stepping forward to challenge the law,” and on different grounds than the FAIR lawsuit. But for Goad, the professors’ and students’ lawsuit only shows HLS’s own inaction: “It’s painful all over again to see leadership coming from other schools while Harvard, so far, buries its head in the sand.”

“It also highlights the lack of strong faculty participation in GLBT [Gay, Lesbian, Bisexual, Transgender] causes here,” Goad continued. “Several HLS professors are sympathetic to Lambda, but we always have to approach them to request help . . . whereas it looks like the Penn profs were aware for a long time that this is a serious problem, made plans to take action, and then did so, without students having to beg.”

Carina Cuellar, who is a Second Lieutenant in the U.S. Marine Corps, said that the “Don’t Ask, Don’t Tell” policy currently in place is not the military’s policy, “it is the policy of the Clinton and Bush administration.”

“If I accept the policy outlined in the email,” Cuellar continued, “that means to me it is actually the Bush administration that practices, and the Clinton administration before it, discriminatory hiring policies and, thus, Harvard should also ban federal government officials, particularly those that are agents of the administration from its campus.”

While Cuellar emphasized that she does not want administration officials banned from the Law School, she thinks the logi
c of Harvard’s policy necessitates such a move. “I just want a consistent policy,” she said. “The rhetoric blaming an institution that must follow the policies that are dictated to it does not sit well with me. The target should be those who set the policies.”

Comments