BY ADINA LEVINE
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In a rally opposing Harvard Law School’s hosting of the military as part of its On Campus Interviewing, Professor Alan Dershowitz advocated suing the federal government for its interpretation of the Solomon Amendment that requires universities to allow the military to recruit on campus or else face the possibility of severed federal funding. The LAMBDA-sponsored rally on the steps to the library on Friday brought almost 100 students and numerous professors out in the rain to protest the military’s “Don’t Ask, Don’t Tell” policy and the Solomon Amendment’s interpretation that requires Harvard to allow military recruitment.
“This is extortion, there’s no other word for it, it’s extortion,” said Dershowitz. “We must fight it in the way we know how, and that means filing a lawsuit.”
The Solomon Amendment was passed in 1995, requiring that specific federal funds could not be provided “to an institution of higher education (including any sub element of such institution) if the Secretary of Defense determines that that institution … has a policy or practice that either prohibits, or in effect prevents [military recruitment].” The Amendment was reinterpreted in 2000 to its include all parts of a university within its “institution of higher education,” meaning that a law school that refuses to allow the military to recruit on campus would have funding cut off from the entire university.
“I’m very opposed to two government policies that directly violate our policy of nondiscrimination and directly impact our students,” stated Dean Kagan at the rally. “The first is ‘Don’t ask, don’t tell.’…. The second is the Solomon Amendment which effectively forces educational institutions to make exceptions to their nondiscrimination policy when it comes to the military and military recruitment.”
Prior to the reinterpretation of the Solomon Amendment, HLS allowed military recruiting through the Veteran’s Association instead of through career services. This provided students who wished to interview with the military the ability to do so without Harvard Law School’s endorsement of the military’s policies.
“People who wanted to have access to the military had the ability to meet with military recruiters,” said Kagan. “At the same time, Harvard Law School could be committed to its principles that we believe in nondiscrimination, we believe in nondiscrimination everywhere, we believe in nondiscrimination when it comes to the military and so we won’t provide this kind of assistance.”
The reinterpretation of the Solomon Amendment forced the law school to allow the military to recruit on campus in 2002. The real victims of a cessation of federal funding would be the medical school and medical research, according to Dean Kagan, because the law school itself does not receive much money.
“The government shouldn’t use its power of the purse strings to force educational institutions to change its principles, especially in this case where the application of these principles are of such great importance,” said Kagan. “What the United States government is essentially saying to gays and lesbians is that they cannot participate in, they cannot contribute to this incredibly important mission. These men and women, notwithstanding their talents, their conviction, their courage, cannot perform what I truly believe to be the greatest service a person can give for their country. And that’s just wrong, that’s just flat out wrong.”
Other faculty members faulted not only the government but also the university in not opposing the Solomon Amendment.
“I don’t think ‘Don’t ask, Don’t tell’ is hypocritical, I think our nondiscrimination policy is hypocritical,” commented Professor Christine Desan at the rally. “We are saying that we are tolerant but we may not protect you, we mean well but we will make exceptions. That message is wrong and it is destructive both to the people it excludes and [the people it includes]. We should protest it every way we can: but teaching, by learning, by using the law for a remedy.”
Dershowitz believes that the university employs a double standard; that had there been a firm that openly refused to hire women, African-Americans or Jews, that Harvard would no doubt deny on-campus interviewing no matter how much money such a firm provided. “I think we have a double standard when it comes to sexual orientation,” said Dershowitz. “We must do with gays and lesbians what we would do with other discrimination groups. We cannot have a double standard.”
As the university with the greatest endowment in the world, Harvard University has a particularly important role to play in resisting the Solomon Amendment, according to Dershowitz, and should be the first -not the last – to take a stand and file a lawsuit. “I am not here to say that Harvard should cut off all funding to the medical school, but I am here to say that we are not doing enough,” Dershowitz stated. “We haven’t done enough for our students, for our community, for our principles unless we are committed to fighting this in the only way we know how… to show that Harvard law school cannot be extorted into violating its principles.”
Faculty members at the University of Pennsylvania and Yale Law School, as well as student groups at Yale, have already filed lawsuits against the Department of Defense in federal court. The judge recently denied a motion to dismiss on the Yale Law School students’ claims.
“I would be very excited to see the faculty take a more aggressive stance on the issue by increasing pressure on Harvard University to take action as an institution and by filing an independent faculty lawsuit in the meantime,” commented Sam Tepperman-Gelfant, HLS Lambda Co-President. “Faculty members at Penn and Yale have already filed suits ….. and I would love to see Harvard faculty do the same.”
While almost 50 faculty members, including Dean Kagan, filed an amicus brief in the lawsuit filed by The Forum for Academic and Institutional Rights (FAIR), a national coalition of law schools and law faculty, University President Lawrence H. Summers has publicly opposed challenging the Solomon Amendment or its current interpretation. “Dean Kagan must wear two hats with respect to this issue, and while it seems clear that as a legal scholar she finds “Don’t Ask, Don’t Tell” and Solomon abhorrent, as an employee of the University who reports to President Summers, she is not in the position to openly defy him,” stated Jonah Knobler, Political Chair of Lambda, speaking for himself and not Lambda. “I don’t envy her position, but I do hope she is continuing to pressure Summers behind the scenes.”
Last December, President Summers announced in a letter to gay HLS alumni, angry over his non-response to Solomon that, rather than litigating, he had “secured the agreement of Pentagon officials to enter into discussions” about Solomon behind the scenes, according to Knobler. There has been no public follow-up on these discussions, and many students remain angered over the university’s inaction.
“I believe those of us who elected to come to HLS accepting its non-discrimination policy at face value are owed an update on the status of these “discussions,” for starters,” commented Knobler. “The issue affects everyone on campus, not just gays, lesbians, and bisexuals. For one, if our anti-discrimination policy can be overridden in this one context, the same thing could happen again in another context. Therefore, the climate of security and comfort for all “minority” students on campus – women, racial minorities, religious minorities, etc. – is at stake.”
Matt Muller, 2L, spoke at the rally about his experiences in the military. He told the story about how his roommate and two of his colleagues attacked someone in the bathroom who they thought exhibited gay mannerisms, put a pillowcase over the person’s head, beat him in the back of the head and then stuck his head in the toilet and flushed a few times. His roommate received undesirable night duty for his role in the attack; the guy who was attacked was discharged under
“Don’t ask, Don’t tell.”
“It is pure bigotry, there is no other reason for it,” said Dershowitz. “And I am ashamed of the fact that I am part of a university that is complicit in it. I believe we can do more and I believe we must do more.”