BY HUGO TORRES
In a stunning reversal of policy, Harvard Law School decided on Tuesday to initiate once again its ban on military recruiting on campus. In a public statement, Dean Elena Kagan wrote: “This return to our prior policy will allow OCS to enforce the Law School’s policy of nondiscrimination wthout exception, including to the military services. I am gratified by this result, and I look forward to the time when all law students will have the opportunity to pursue any legal career they desire.” As such, military recruiters will no longer have access to official school recruiting channels.
The decision to bar military recruiters comes in the wake of the 3rd U.S. Circuit Court of Appeals issuing a preliminary injunction against the Solomon Amendment, finding it to be unconstitutional. In 2002, the Defense Department threatened to cut funding to Harvard if it did not allow military recruiters on campus, noting that the Solomon Amendment gave it the power to deny funds to colleges and universities that restricted military recruiting. Harvard and other schools complied with the request, fearing the loss of millions of federal dollars.
Despite student protests and faculty support for a lawsuit, Harvard did not initiate litigation against the Solomon Amendment. Other schools, however, did initiate litigation, leading to the 2-1 ruling in the Third Circuit. The ruling centered on the first amendment right of expressive association and the right of law schools to not associate with a group whose message went against the non-discrimination policies of the schools.
The co-presidents of HLS Lambda, Peter Renn, 2L, and Sam Tepperman-Gelfant, 3L, issued a joint statement in light of the ruling. “The decision is an enormous victory for equality and the right of educational institutions to send the message that discrimination on the basis of sexual orientation is fundamentally wrong,” wrote Renn and Tepperman-Gelfant. “The court held unequivocally that the Solomon Amendment cannot currently be enforced. In so holding, the court saw the Solomon Amendment for what it is: a bald-faced attempt by the federal government to blackmail schools into compromising on their commitment to equality for all.”
Though pleased with the ruling, Renn and Tepperman-Gelfant expressed dismay that Harvard stood on the sidelines while other schools fought the legal battle. “While we applaud the Harvard Law School faculty members who filed an amicus brief in the case, we remain disappointed and ashamed that Harvard University refused to join FAIR and therefore played no part in today’s victory.”
The next phase in the case could be the Third Circuit hearing the case en banc or appealing straight to the Supreme Court.
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