Just a day before Harvard University, Penn and five other institutions filed a brief with the Supreme Court that argued against the military recruiting on campus, Harvard Law School Dean Elena Kagan caved under the threat of losing federal funds and allowed military recruiters full access to campus.
Kagan, in an e-mail sent to the students and staff of Harvard Law School on Sept. 20, expressed "regret in making this exception to [Harvard's] anti-discrimination policy."
She was referring to the military's "don't ask, don't tell" policy, which some say discriminates on the basis of sexual orientation. She added that the military's policy is "unwise and unjust."
The Solomon Amendment, which the "friend of the court" brief is challenging, denies universities federal funding if they prevent the military from recruiting on campus.
Harvard Law's nondiscrimination policy -- formed in 1979 -- barred the military from using the school's career-services office until late 2002, when the Department of Defense issued a far-reaching ultimatum.
The message to universities was clear: Give the military equal access to career services or face the prospect of no federal funding.
Harvard -- along with other institutions, including Penn -- made an exception for the military in its nondiscrimination policy and gave it access to its career office beginning in the spring of 2003.
In November 2004, the Court of Appeals for the 3rd Circuit held that the Solomon Amendment is unconstitutional because it violates the First Amendment.
Many law schools, including Harvard and Penn, reverted to their original policies in January of 2005, deciding to bar the military from using their facilities.
However, Harvard was notified over the summer that it would lose federal funding -- totaling more than $400 million -- if it did not grant access to its career services.
Penn Law professor Kermit Roosevelt called the Department of Defense "aggressive," adding that Harvard was forced into making this exception because the November 2004 ruling holding the military's policies unconstitutional was stayed by the Supreme Court when it decided to rule in the Forum for Academic and Institutional Rights v. Rumsfeld case this summer.
Penn's Law School, however, was unaffected by the Supreme Court's decision to stay the 3rd Circuit Court's earlier ruling.
The University has "a separate agreement with the Defense Department," Roosevelt said, since Penn Law professors and students filed their own case in Pennsylvania district court in February 2004 based on arguments specific to the University.
Furthermore, Roosevelt said that no employer uses Penn Law facilities to recruit anyway. Instead, either Wharton's facilities or the University's main career-services office is used. The University is therefore of the opinion that the military essentially is granted equal access.
What the military wants is just "symbolic," Roosevelt said.
In addition to Harvard's policy change and its filing of an amicus brief, 40 Harvard law professors also filed an amicus in support of FAIR at the Supreme Court.
Harvard President Lawrence Summers defended the Law School's decision, citing "potential consequences to [the] university's research and other activities."
"The Law School and the University share a deep and enduring commitment to the principles of nondiscrimination and equal opportunity for all persons," Summers said in a statement.
Solomon Watch - Fall 2005: Harvard Law allows military to recruit on campus - January 2005: Penn Law and Harvard Law bar on-campus military recruiting - Late 2002: Dept. of Defense issues ultimatum demanding equal access to career services
