BY JEFFREY JAMISON
On Wednesday, September 14, 2005, the Pentagon announced that New York Law School had been added to the list of higher education institutions that are ineligible for federal contracts and grants, because it barred military recruiters from its campus in violation of the Solomon Amendment. Vermont Law School and William Mitchell College of Law are also facing the loss of federal funds after they prohibited military recruiters from their campuses, because the Pentagon’s “Don’t Ask, Don’t Tell” violated their antidiscrimination policies. Two days later, Kent Greenfield, the president of the Forum for Academic and Institutional Rights (FAIR) and a Boston College law professor told Inside Higher Ed, that the Pentagon’s move is a publicity stunt, “They can pick off the Vermonts and William Mitchells of the world, and nobody will make a fuss, but I think the military knows better than to pick that fight [with Harvard].”
On September 20, 2005, Dean Kagan announced to the law school community, “I write to let you know that this fall, the Office of Career Services (OCS) will provide assistance to the U.S. military in recruiting students, as it has done for most of the past three years…I have said before how much I regret making this exception to our antidiscrimination policy.” Sun Tzu said, “If fighting is sure to result in victory, then you must fight, even though the ruler forbid it; if fighting will not result in victory, then you must not fight.” Or as Monty Python put it, “Run Away, Run Away, Run Away.”
Dean Kagan was in the unenviable position of having to make both a literal and figurative Solomon decision. The Solomon Amendment requires that all colleges and universities permit military recruiters access that is “at least equal in quality and scope” to that which is given to other recruiters. If a college or university, or sub-element of the school, does not provide access, the school as a whole will lose all federal funds, which to Harvard equals about $400 million dollars a year.
There is no question that the military is vitally important to our society-military service is one of the most honorable forms of public service-and that access to college and university students is important to military recruitment. Equally important, if not of greater importance, is a private university’s autonomy and academic freedom, and the First Amendment freedoms of speech and association. For many years the law school attempted to balance these interests by banning military recruiters from participating in OCI because of the school’s antidiscrimination policy, but granting the military access to HLS students through the Harvard Law School Veterans Association (HLSVA). This seemed like a reasonable compromise until 2002 when the Defense Department announced that unless HLS lifted its ban on military recruiters and provided “equal access” though the Solomon Amendment (which only called for “access” then; in 2004, the House of Representatives passed legislation requiring “equal access”), it would wield the mighty sword of the Solomon Amendment and cut all federal funding to the University. This move was supported by the Bush Administration, which called the policy essential to recruiting, “particularly in a time of war.” Did I miss another declaration of war, at least an official one?
The law school complied and granted the military an exemption to the antidiscrimination policy; but in 2004, the law school saw an opening to revoke the exemption. The 3rd Circuit Court of Appeals, in FAIR v. Rumsfeld, found the Solomon Amendment unconstitutional: “To comply with the Solomon Amendment, the law schools must affirmatively assist military recruiters in the same manner they assist other recruiters, which means they must propagate, accommodate, and subsidize the military’s message. In so doing, the Solomon Amendment conditions funding on a basis that violates the law schools’ First Amendment rights.” While the ruling only applied to those law schools in the 3rd Circuit, in a move that HLS Lambda called, “courageous,” Dean Kagan “affirm[ed] the law school’s commitment to equality for all its members” by banning the military from the Spring 2005 recruiting season.
As Dean Kagan’s e-mail indicated, the Department of Defense over the summer threatened the University with the withholding of all possible funds if the Law School continued this ban on military recruiting. And so they’re back…
The Supreme Court has agreed to review the 3rd Circuit’s FAIR decision, which will likely put to rest the question of the constitutionality of the Solomon Amendment (though I am not holding my breath). The government’s brief claims that the Solomon Amendment’s aim is only to secure equal access to college and university students for staffing the armed forces, which have seen recruitment numbers dwindle in the last few years. Is there perhaps another way in which the military could improve its recruiting numbers? Maybe if individuals who wanted to serve in the military were no longer barred from serving or discharged from the military because of a discriminatory policy?
The government claims that equal access suggests that the alternative access provided by HLS and other schools hurts recruiting efforts, yet they offer no support for that claim. The real rub, however, is that government is not seeking “equal access,” but special access. Every employer in the country, including the military, has the same access to HLS students, as long as they sign the antidiscrimination agreement. What the government is seeking through the Solomon Amendment is special access, or the approval to discriminate that other OCI employers are denied.
The government claims that it is not forcing any college or university to allow special access for military recruiters: “the recourse for a person who does not wish to be bound by a funding condition is to decline federal assistance.” On the other hand, the recourse for any person who does not wish to be excluded from the OCI process is to not discriminate, and to not resort to threats or blackmail in order to receive an exemption from the antidiscrimination policy; but that is probably asking too much.
Representative Richard Pombo (R-CA) said that the Solomon Amendment was needed to “send a message over the wall of the ivory tower of higher education [to] colleges and universities . . . that their starry- eyed idealism comes with a price.” Starry-eyed idealism that embraces things like equality, free speech, protecting the rights of any individual to serve in our military and basic civil and human rights-you know, that same type of starry-eyed individualism that this country was founded on, that same starry-eyed idealism that brought many of us to law school.
The University had the opportunity to join the FAIR lawsuit, or to file its own suit like that other school in New Haven whose name rhymes with Yale did. President Summers declined, and instead made the bold gesture of filing an amicus brief before the Supreme Court. Next week he will drink milk that is one day past the expiration date. President Summers called Dean Kagan’s decision to lift the ban on military recruiters “prudent given the potential consequences to the University’s research and other activities.” Her decision was more than prudent. It was laudable. Dean Kagan’s commitment to this community is well established. Her decision to ban the military recruiters in the spring of 2005 was a bold risk that unfortunately did not pay off. Instead of hiding behind her decision by simply informing the entire HLS community of the reversal in policy by e-mail, she met with the members of Lambda to inform them first. Over the last several years, she has spoken out publicly against the Solomon Amendment and joined amicus briefs filed by HLS professors challenging the constitutionality of the Amendment. Perhaps she could have done more, but, to paraphrase Sun Tzu, the dean who advances without coveting fame and retreats without fearing disgrace, whose only thought is to protect her community, is the j
ewel of the community. I think that most of us join Dean Kagan in looking, “forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.” I also suspect that when we reach that time, Dean Kagan will have had a hand in getting us there.