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Elena Kagan, dean of Harvard Law School, signed a friend-of-the-court brief supporting the lawsuit.
Elena Kagan, dean of Harvard Law School, signed a friend-of-the-court brief supporting the lawsuit. (Globe Staff / David L. Ryan)

Pentagon ordered to halt law school recruiting tactics

The federal law that forces law schools to allow military recruiters on campus is an unconstitutional violation of schools' First Amendment rights, according to a ruling handed down by an appeals court in Philadelphia yesterday.

A three-judge panel issued an injunction prohibiting the Pentagon from enforcing the Solomon Amendment, which had compelled Harvard, Yale, Boston College, and many other universities to allow military recruiters on campus despite the fact that the US policy against gays serving openly in the military violates the schools' nondiscrimination rules.

"The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom," Judge Thomas L. Ambro wrote for the two-judge majority in the US Court of Appeals for the Third Circuit.

Yesterday's decision was in response to a lawsuit filed by a group of law schools and professors and marked a victory for those who have opposed what they called the heavy-handed tactics used by the Department of Defense at law schools around the country. The Solomon Amendment allows the government to withhold a large portion of federal funding from universities that bar military recruiters, and beginning in 2002, the Pentagon began a campaign of using the law to pressure schools to allow its recruiters on campus. Many of the schools reluctantly decided they could not jeopardize their federal support by barring the recruiters.

The Solomon Amendment applies to military recruiters at all universities, but the battle over enforcement has largely been fought at law schools because the group that accredits law schools requires them to have a nondiscrimination policy that includes sexual orientation.

The injunction ordered by the court applies nationally, said E. Joshua Rosenkranz, a New York lawyer who argued the case on behalf of the group of law schools. To overturn it, the government would have to file an appeal with either the full Third Circuit or the US Supreme Court. Two other lawsuits challenging the Solomon Amendment are pending.

"We are still reviewing the court's opinion, and no determination has been made about what the government's next step will be in this matter," Charles Miller, a spokesman for the Department of Justice, said yesterday.

With news of yesterday's ruling still fresh yesterday, officials with Harvard Law School, Yale Law School, and Boston College said the schools had not had time to decide how they would respond.

Opponents of the law say the decision is likely to result in a prompt return to military recruiting bans at many law schools. Twenty-five schools belong to the Forum for Academic and Institutional Rights, or FAIR, the group that brought the lawsuit. Among the members of FAIR are the law schools at New York University, Stanford University, Georgetown University, and George Washington University. Some of FAIR's member schools have not announced themselves publicly.

The Society of American Law Teachers, a liberal group representing 900 law professors, is also part of the lawsuit.

In the lawsuit, FAIR argued that by allowing recruiters on campus, schools were being forced to endorse the military's policy of excluding gays from serving openly.

"We believe the Solomon Amendment forced us to use our resources to further a message we disagree with," said Kent Greenfield, the Boston College law professor who founded FAIR. "If the First Amendment means anything, we shouldn't be forced to do that."

Boston College declined to sign onto the lawsuit, as did Harvard.

At many schools that changed their policies, including Harvard and Yale, leaders expressed strong regret at being forced into the decision. Harvard law dean Elena Kagan was one of 54 Harvard law professors who signed a friend-of-the-court brief supporting the lawsuit. She also wrote an open letter to the campus describing her "deep distress" over the issue, calling the ban on openly gay service members "a profound wrong -- a moral injustice of the first order."

When Harvard decided in 2002 that it had to bow to the Solomon Amendment, it was reversing a ban on military recruiters that had been in place since at least 1979. At Harvard and most law schools, however, the ban was largely symbolic, with military recruiters allowed to visit at the invitation of a student group or if they conducted interviews in an alternate location.

"I don't think we will see mass eviction of military personnel from campuses," Rosenkranz said. "Most schools will simply refuse to provide affirmative assistance but will still let them on campus at the invitation of students."

Though the Solomon Amendment was initially passed in 1996, many law schools were tacitly allowed to continue with such policies. In 2002, however, the Defense Department started enforcing the law more aggressively. The military sent letters to at least a dozen schools threatening that their universities would lose much of their federal research funding if they did not give military recruiters equal treatment.

Politicians have continued to try to add more teeth to the law. Last month, the defense authorization bill passed by Congress strengthened the wording of the provision and added new federal agencies to the list of departments whose funding would be denied to violators.

In his dissent to yesterday's 2-to-1 decision, Judge Ruggero J. Aldisert argued that the Solomon Amendment does not violate free speech rights.

"The Solomon Amendment makes no effort to condition federal funding on the absence of campus criticism of military policies," he wrote. "A law school and its faculty and students are free to denounce military recruiting policies without jeopardizing federal funding in the slightest."

Marcella Bombardieri can be reached at bombardieri@globe.com. 

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