One of the key points of the decision relied on a precedent set by a 2000 Supreme Court ruling allowing the Boy Scouts to exclude gay volunteers from their group. “Ironically, a decision that previously allowed a group to exclude gays is being used by academic institutions who wanted to make sure that gays are not excluded,” Minow said.

Students and faculty celebrated the Third Circuit’s ruling but criticized the University’s central administration for failing to take the lead in Solomon Amendment litigation.

University President Lawrence H. Summers wrote in a letter to gay alums last December that “the Solomon Amendment as interpreted and enforced is bad public policy.” But he resisted a petition by law professors calling on Harvard to file suit against the Pentagon.

“While we applaud the Harvard Law School faculty members who filed an amicus brief in the case, we remain disappointed and ashamed that Harvard University refused to join FAIR and therefore played no part in today’s victory,” Peter Renn and Sam Tepperman-Gelfant ’00, co-presidents of the Law School student gay rights group Lambda, said in a statement.

Frankfurter Professor of Law Alan M. Dershowitz said in an interview that “Harvard should be ashamed of itself for not having brought the lawsuit and for having capitulated to an immoral and probably illegal extortion.”

“We failed miserably in not taking advantage of the legal options that were available to us,” Dershowitz said. “We failed our gay and lesbian students. We failed our own principles.”

Dershowitz said the Law School likely would have acted independently to file suit against the Pentagon if it had not been blocked by the central administration.

He said he did not know which Harvard officials were responsible for the University’s inaction on the Solomon Amendment issue. “I do not know who bears responsibility,” Dershowitz said, “but I think we are owed an explanation.”

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.