HLS profs mull Solomon suit

BY CLINTON DICK

Harvard Law professors are poised to file suit challenging the Solomon amendment after President Summers stated the university would not file its own suit, according to several HLS faculty members. This comes after New Jersey Judge Lifland denied an injunction that would have stayed application of the Solomon Amendment in the Forum for Academic and Institutional Rights (FAIR) lawsuit filed this fall.

Prof. Martha Minow said, “Several faculty members, including myself, are actively exploring the possibility of filing litigation challenging the Solomon Amendment and its application to HLS.” Prof. Elizabeth Warren said she would join such a lawsuit.

Prof. Charles Ogletree said the prospect of a suit was “imminent,” adding that “[e]veryone 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” and that he expected dozens of his colleagues to join in the suit, according to The Crimson.

These comments came in response to statements made by President Summers negating the idea of a University suit. “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, as reported by The Crimson. “We are certainly making our views known and discussing this both with the executive and legislative branches.”

But it is clear that at least some HLS professors found Summers’ comments lacking. “I am disappointed by President Summers’ response,” said Prof. Frank Sander, who had signed the open letter to President Summers asking the administration to legally challenge Solomon. Sander did not say whether he would join a lawsuit.

Dean Kagan said she could not join any lawsuit in her capacity as dean given that it might suggest the Law School itself was joining. But, she said, “I intend to consult with members of the law school and university communities before deciding whether I can appropriately join the suit in another capacity.”

She continued, “I believe faculty members who have strong views on this issue ought to bring suit. This action can only help to restore the full scope of the school’s anti-discrimination policy.”

At stake in the controversy is potentially hundreds of millions of dollars of federal funding that Harvard University receives each year. But, Holly Lewis, secretary of Lambda, the amount of funding that is threatened may not be so high. “The military never actually threatened Harvard University with the loss of all federal funds,” said Lewis.

Noted was the letter sent to Dean Clark from the Air Force which said that unless a school complied with the Solomon Amendment federal funding would be withheld. The letter stated: ‘”[Unless we receive new info that you are in compliance] we will forward this matter to the Office of the Secretary of Defense with a recommendation of funding denial.”‘

But, according to Lewis, “It is very significant that the Air Force did not itself threaten all of Harvard University’s funding. First of all, as it states in the letter, the Air Force can only make recommendations to the Secretary of Defense” whether a school is in compliance and then the Secretary can only cut off funding as authorized by statute or regulation.

But confusion surrounds the question of which type of federal funding termination applies to the Law School and which would apply to the Law School and the University jointly. Judge Lifland noted in his opinion: “Current DOD regulations provide that limitations on DOD funding apply to an offending subelement as well as its parent institution, whereas limitations on other federal funding apply only to the offending subelement. 32. C.F.R.

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