Post date: August 26, 2002 — 1:30 p.m.

The following is a memo from Dean Robert C. Clark to the Harvard Law School community outlining changes to the school’s military recruiting policy for the 2002-2003 academic year.

This academic year, for the first time since this School adopted a policy prohibiting discrimination on the basis of sexual orientation, the U.S. military will be allowed access to the facilities and services of the Law School’s Office of Career Services (“OCS”). Because of the significance of this decision, I write to inform you of the history of this issue at the Law School and the path that led to this course of action.

At the outset, I would emphasize that the decision is the product of intense discussion and careful deliberation after the military raised the issue with new rigor this year. Regrettably, no reasonable alternative was available that could satisfy the disparate views on this issue. I have personally struggled with this issue, because I recognize the pain that some members of the community (especially our gay and lesbian students) will endure because of the change in practice. For many of us, a policy of nondiscrimination on the basis of sexual orientation reflects a fundamental moral value. There are numerous ways to express this value and pursue its implementation, however. Our decision to permit military recruiters access to the facilities and services of OCS does not reduce the Law School’s commitment to the goal of nondiscrimination on the basis of sexual orientation.

Our policy has long provided that any employer who recruits at Harvard Law School and utilizes the services of OCS must sign a statement indicating that it does not discriminate on various bases, including on the basis of sexual orientation. Because the military has not signed such a statement, it has not been permitted to utilize the services of OCS in the past.

At issue for several years, however, has been the interpretation of a federal statute commonly known as the Solomon Amendment. This statute, enacted in 1996, denies certain federal funds to an educational institution that “prohibits or in effect prevents” military recruiting. The regulations implementing the statute state that if an educational institution does not provide “requested access” to campus, the institution will lose its federal funds unless the institution can demonstrate “that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers.” 32 C.F.R. 216.4(c)(3).

In 1998, the Air Force asked us for information to determine whether we were in compliance with the Solomon Amendment. I responded at that time by pointing out that the military has been able to recruit effectively at the Law School via a different route—namely, the Harvard Law School Veterans Association (“HLSVA”), a recognized student organization. As you may know, any official student organization at the Law School may invite any person or organization onto campus. HLSVA has invited military recruiters and has facilitated their efforts at HLS. In 1998, after I explained our nondiscrimination policy for OCS and the practice of having the military recruit through HLSVA, the Air Force determined that we were in compliance with the Solomon Amendment.

In December 2001, the Air Force made another inquiry on the subject. Our initial response mirrored the response we sent in 1998. However, although our practices had not changed since then, apparently the Air Force’s interpretation of the Solomon Amendment had changed. On May 29, 2002, the Air Force notified me that it no longer views our policy as being in compliance with the law. The Air Force’s letter said that unless the School showed by July 1, 2002 that our “policies and practices had been modified to conform with federal requirements” they would “forward this matter to the Office of the Secretary of Defense with a recommendation of funding denial.”

In light of the Solomon Amendment, our refusal to permit military recruiters access to the services of OCS would make the entire University ineligible for appropriations from the Departments of Defense, Transportation, Health and Human Services, Education and related agencies. The Law School does not receive significant federal funding, and our participation in federally sponsored student loan programs would not be at risk. The University, however, annually receives approximately $328 million from the federal government, which comprises approximately 16% of its operating budget.

Because our recruitment practices have implications well beyond the Law School, I went outside (as well as inside) the Law School to discuss this issue. In summary, I studied the matter with the University’s General Counsel extensively over the summer, and I consulted with Harvard’s President. I also met with the Law School Placement Committee and took counsel from other faculty members and senior administrators of the Law School. At my request, the Placement Committee contacted the leadership of HLS LAMBDA, to inform them of the situation and solicit their input to our response. In reply to our request for more time to study the issue, the Air Force granted us a one-month extension, and on July 29th I informed the Air Force of our decision to permit military recruiters to use OCS.

In the end, the decision to allow the military to recruit on campus recognizes the extraordinary impact a prohibition of recruitment through OCS would have had on the University. I believe a significant majority of the Law School’s students, faculty and staff oppose all forms of discrimination based on sexual orientation. At the same time, most of us reluctantly accept the reality that this University cannot afford the loss of federal funds. Harvard University, one of the nation’s premier research institutions, would be adversely impacted by the abrupt termination of millions of dollars in federal funding. To say that this decision is just about money trivializes the significance these funds have on students’ educations, faculty careers, and scientific research that can lead to cures to life-threatening illnesses and debilitating diseases.

As a citizen, I am convinced that military service is both honorable and essential to the well being of our country. I am deeply grateful for the sacrifices made by military personnel and the security and other benefits they provide to all of us. As Dean of Harvard Law School, I am also very proud of each and every graduate who has gone into military service, and I hope the number increases. Precisely because of this respect for military service, I believe that one way or another, all students should have access to these exceptional opportunities to serve their country.

This year and in future years, the Law School will welcome the military to recruit through OCS. Our decision to allow the military to recruit through OCS, however, does not imply that we support the military’s personnel policies. The Law School condemns the military’s discriminatory practices and remains committed to the principle of equal opportunity for all persons, without discrimination on the basis of sexual orientation. We are dedicated not only to the rule of law, but also to the advancement of a just society.

Going forward, I will be working with the leadership of LAMBDA and other HLS student organizations, and with our faculty and administrators, to discuss constructive measures that the Law School can take in support of its nondiscrimination policy. A society that discriminates on the basis of sexual orientation— or that tolerates discrimination by its members—is not a just society. I am hopeful that in the very near future the United States military will adhere to the fundamental principles of equal opportunity and nondiscrimination.