Summer lunches, Baghdad style

BY GREG LIPPER

A wild-eyed Donald Rumsfeld skipped out early from his daily press briefing to lead a squadron of B-1 bombers into Cambridge. The pilots prepped to drop a laser-guided smart-bomb through the Harvard University bank account. Dean Clark and President Summers engaged in what Clark’s community memo described as “intense discussion and careful deliberation,” with the latter hoping to prevent $328 million in federal research grants from following West and Appiah over to Princeton.

Since adopting a policy that prohibits discrimination on the basis of sexual orientation, Harvard Law School has banned the military from recruiting through on-campus interviewing. (I will assume that being denied access to Mark Weber’s sunny platitudes is a punishment, not a reward, but I reserve the right to reconsider this question.) A federal statute enacted in 1996, known as the Solomon Amendment, denies certain federal funds to any educational institution that “prohibits or in effect prevents” military recruiting. In 1998, after being pressed by the Air Force, Dean Clark convinced the military it would be able to recruit effectively through the Harvard Law School Veterans Association. Yet in December 2001, the Air Force, now under Republican management, raised the issue again. In May 2002, the Air Force notified Clark that it no longer viewed HLS’s policy as compliant with federal law and its implementing regulations, and threatened to recommend to the Office of the Secretary of Defense that Harvard University’s DOD funding — $328 million— be denied. This time, Dean Clark backed down. OCS is now being painted camouflage.

Protesters have spared HLS leadership of any blame. Lambda’s Lindsay Harrison told the New York Times that “Dean Clark had no choice but to cave.” Stanford Law professor George Fisher wrote in last Saturday’s Times that “the military is forcing [schools] to bend their principles.” And the Boston Phoenix declared that HLS “had no choice but to acquiesce.” The military flexed its muscles, say commentators, and the Dean had no but choice to retreat into a foxhole.

Granted, HLS would have been better situated to take on the military back when we still had a faculty member named Slaughter. But maybe we did not need to wave the white flag so quickly.

For starters, did anyone consider taking this to court? The Air Force changed its interpretation of the Solomon Amendment, and the Law School had a plausible argument that they were wrong. Sure, the Dean is more the transactional, Ropes & Gray type, but surely he could have persuaded Larry Tribe to teach the Pentagon a thing or two about trench warfare. And how about the odds of success, given a Supreme Court comprised of five HLS alumni? Maybe such an effort — one just a bit more strenuous than the Dean’s heartfelt “Memorandum to the Harvard Law School Community” — would have sent a message that the HLS leadership truly did “recognize the pain that some members of the community… will endure because of the change in practice.” And maybe, even if ultimately unsuccessful, such an effort would have started a more serious national debate about how much the nation is willing to pay in order to promulgate the continued regulation of sexual orientation by the military.

Even if it lost in court, why couldn’t HLS call the DOD’s bluff? Yes, it’s a post 9/11 world, and in the eyes of the public, the military can do no wrong. But then again, this really has nothing to do with the war on terror. HLS students aren’t being recruited to defend the nation against Osama Bin Laden; they are being recruited to defend pot smokers against court martials. We’re not talking Tom Cruise in Top Gun; we’re talking Tom Cruise in A Few Good Men.

Something tells me that as the Republicans gear up for campaign 2002, they may not want to be talking about why they are jeopardizing what Clark rightly called “students’ educations, faculty’s careers, significant medical and scientific research, and perhaps even cures to life-threatening diseases,” so that Jerry Falwell and Pat Robertson can get more beauty rest. Refusing to retreat just may have been a reasonable alternative after all.

No matter. Dick and Don will take the blame. HLS students will once again consider (and reject) joining JAG en route to Cravath. Dean Clark had no choice but to acquiesce to this result with the least amount of resistance possible. Would-be critics had no choice but to proliferate the gun-to-the-head motif.

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