Post Date: January 13, 2004
Yesterday 54 members of the Harvard Law faculty filed a friend of the court brief in the Federal Court of Appeals for the Third Circuit in support of the Forum for Academic and Institutional Rights, the Society of American Law Teachers and other plaintiffs in their challenge to the Solomon Amendment as enforced by the Department of Defense. In 2002, the Department of Defense had threatened to withdraw federal funding from universities that did not provide identical access to law students by military recruiters as that provided to other employers.
Please click here for a copy of the brief. (PDF, 212KB)
The brief argues that the Department of Defense erroneously construed the Solomon Amendment to exempt the military from otherwise generally applicable rules such as Harvard Law School's antidiscrimination policy.
"We're eager to point out how Harvard has complied with the Solomon Amendment while preserving our own antidiscrimination policy," said HLS Professor Martha Minow, a leader of the effort. "This is straight-forward interpretation of the federal law and does not require turning to more difficult constitutional questions."
Prior to 2002, the access requirement was met at Harvard Law School through the invitation of the HLS Veterans’ Association, a recognized student group. Despite a prior determination by the military that this met the act's requirements, the school -- along with many of its peer institutions -- was informed in May of 2002 that it no longer compliance. As a result, then-Dean Robert Clark announced reluctantly the decision to suspend application of the law school's antidiscrimination policy as applied to military recruiters.
The brief, written on a pro bono basis by Walter Dellinger, Pamela Harris and Toby Heytens of the law firm O'Melveny and Myers, argues first that the Solomon Amendment does not require the exemption of the military from otherwise even-handed antidiscrimination policies. Second, the Amendment requires access, but not identical access, for military recruiters.
The HLS professors who signed the brief include William Alford, William D. Andrews, Samuel Bagenstos, David Barron, Elizabeth Bartholet, Scott Brewer, Victor Brudney, Robert C. Clark, John C. Coates IV, Alan Dershowitz, Christine A. Desan, Charles Donahue Jr., Christopher Edley Jr., Richard Fallon, William W. Fisher III, Gerald Frug, Heather K. Gerken, Ryan Goodman, Lani Guinier, Janet E. Halley, Daniel I. Halperin, Jon D. Hanson, Bruce L. Hay, Philip B. Heymann, Morton J. Horwitz, Elena Kagan, Andrew L. Kaufman, David Kennedy, Duncan M. Kennedy, Randall Kennedy, Reinier H. Kraakman, Kenneth Mack, Dan Meltzer, Frank I. Michelman, Martha Minow, Robert H. Mnookin, Charles R. Nesson, Charles J. Ogletree Jr., Oliver Oldman, Todd Rakoff, Frank E.A. Sander, Margo Schlanger, David L. Shapiro, Joseph W. Singer, Carol Steiker, Henry J. Steiner, Guhan Subramanian, Laurence H. Tribe, Elizabeth Warren, Paul Weiler, Lloyd L. Weinreb, Lucie White, David B. Wilkins and Jonathan Zittrain.