25 years, and nothing’s changed

BY GEOFFREY MCGOVERN

With a sincerity almost never found at chilly legal conferences, a roomful of J.D.s intimately embraced one another as family this past Saturday. Those attending the celebration were nondescript to the casual observer: perhaps the men outnumbered women by a suspicious margin; perhaps the gentlemen were a bit too fashionably dressed for Boston; perhaps the lack of wedding rings signaled some united front against hegemonic orthodoxy. But these were details, by and large unnoticed by any guy with a straight eye.

This weekend, Lambda members from the past twenty-five years celebrated a quarter century of companionship, of struggle, and of a shared dignity. It was an important event, the first of its kind, fittingly accompanied by tearful presentations, a deeply felt queer esprit de corps, and that comfort that comes from sharing war stories from battling administrations and conservative public opinion.

Yet despite the two days of jokes and joviality that accompany any good reunion, at this reception we may have caught a glimpse of an unsettling and unpromising future. The event’s climax, an anticipated speech by Dean Kagan – whose prestigious position and conservative management of the Law School would be perfect in a power play for the high bench – disappointingly showed that we can expect little progressive leadership from the new HLS matriarch. While Kagan condemned discrimination of gays and lesbians in word, her deeds convey the distinct message that the best interests of the gay community aren’t top on her agenda.

It was twenty-five years ago that Jose Gomez crafted the lie that lead to the formation of COGLLI, the Committee on Gay and Lesbian Legal Issues, and the predecessor of the modern day Lambda. In the spring of 1978, Gomez organized a number of students concerned about the legal rights of homosexuals. The dean was unreceptive. Nonetheless, if Gomez could find twenty fellow supporters, the dean would see to their official recognition. After a meeting of interested students, Gomez could claim no more than twelve members.

So he lied. He told the dean they surpassed the quota, winning official student organization status. Gomez immediately took to rounding up eight additional supporters. And thus a white lie became an organization. The organization developed into a tight network, and that network became a community vital to the intellectual debate and integrity of the Law School.

Lambda’s silver anniversary was celebrated with a cocktail party at a prominent Boston attorney’s apartment; a full day of panels on GLBT issues at HLS, in academia, the judiciary, public service and private practice; and the evening banquet where Dean Kagan gave a preview of her burgeoning administration.

The alumni were contagiously enthusiastic. In two decades they had seen the beginning of COGLLI, removed homosexuality as a disqualifier for admission to the Massachusetts state bar, advanced public recognition of sexual minorities, begun the push to provide domestic partnership benefits in the workplace and most recently saw the decriminalization of same-sex sodomy. They had every reason to be excited.

As a participant in the reunion events, I was asked to sit on a Saturday morning panel discussing present-day gay life at HLS. What is it like to be gay at Harvard? Solitary, poor, nasty, brutish and short came to mind. But Hobbes’ morbid state of nature seemed to set the wrong tone for a twenty-fifth year celebratory reunion of middle aged lesbians and gay men. Still, it was difficult to be too optimistic. My first year was met with discrimination by military recruiters, homophobic opinion columns published in The Record, indifference by administrators and in the classrooms, and a rather chilly social life in Boston’s undergraduate and forty-something dominated gay scene. (Dean Clark said there wasn’t much he could do about the latter.)

But the alumni didn’t want to know what it was like to be gay at Harvard. They had been here first-hand not long ago, and too few years had passed for there to be any significant change. Instead they jumped right to the Solomon Amendment and military recruiting issues. The current students explained last year’s rally against discrimination, the securing of funding for an upcoming conference on the legal challenge to Solomon, collaborations with other GLBT students at peer institutions and the disappointing progress that has been made right here in Cambridge. A few of us that could muster optimism forecast clearer skies and expressed hope in a new administration with experience in the Clinton White House.

But the weekend’s events suggest Clark’s successor adopts a similar recalcitrance, and will follow Clinton’s practice of unfulfilled promises to the gay community. Like her former boss in his 1992 campaign, Kagan expressed her support for GLBT issues. Now that she has ascended the throne she appears to be backing out.

Her timing was perfect. Kagan, absent from all but the reunion banquet, nonetheless spent Saturday demonstrating that there will always be a need for Lambda. With students and alumni sequestered at reunion events, Kagan announced the latest insult: the school was refusing to join the legal challenge to Defense Department discrimination in military recruiting.

Gay life at Harvard has unfortunately become entangled with the roiling debate about military discrimination. Unfortunate because a number of gay and lesbian students feel Lambda is too focused on political and legal challenges to provide a supportive and receptive environment for the less openly gay community. But the administration’s acquiescence all but forces Lambda to take an activist role. The recent announcement that Harvard will be foregoing the opportunity to join the consortium of law schools attacking the military represents one more reminder of the school’s lack of commitment. Moreover, it is a bold signal that Harvard will break with the recommendations of the broader community of accredited U.S. law schools.

The American Association of Law Schools, an organization that claims its stated purpose as “the improvement of the legal profession through legal education,” has taken an actively anti-military stance. The official AALS policy regarding law school responses to the Solomon Amendment provides that “the AALS Executive Committee will: excuse non-compliance with Executive Committee Regulation 6.19 only for military recruiters, as long as a school provides ‘amelioration’ in a form that both expresses publicly the law school’s disapproval of the discrimination against gays and lesbians by the military and provides a safe and protective atmosphere for gay and lesbian students.” (emphasis added)

The AALS further recommends as appropriate amelioration, inter alia: “[p]articipating in legal and political challenges both to the Solomon Amendment and the policy of discrimination by the military.”

Harvard is an AALS affiliate. All accredited American law schools are. Still, the gay community at Harvard, tirelessly searching for this recommended haven, seems like Damocles looking for an honest man. Where is this safe and protective atmosphere? We have no gay faculty who regularly participate in Lambda discussions and activities, although invitations have been extended repeatedly. Nor have we tenured gay faculty with a strong focus on sexual orientation and the law that help in the push for additional programming and courses. The only academic voice that seems to be speaking out is Mary Ann Glendon, who publicly advocates the adoption of a federal amendment barring same-sex marriage. Not to belittle academic freedom, of course, but so much for a commitment to providing a “safe and protective atmosphere for gay and lesbian students.”

The lack of gay faculty is not from a shortage of queer-focused legal scholars. If anything, this weekend’s reunion strengthened the case for a faculty position. The celebration recognized the efforts of alumni who have advanced the cause of gay rights. The roster read like a Who’s Who: nearly all major a
dvances, legally, academically and politically were staged in part by HLS alumni. Any one of them could make an enormous contribution to legal education, and their continued interest in Lambda suggests (albeit spuriously) their commitment to Harvard. The weekend showed that HLS alumni are leading the way in gay rights, and the dedication of current members suggests that the future is in competent hands. But with the administration’s current tone and the institution’s unimpressive history on gay scholarship, one thing may be said about our alumni’s integrity: they didn’t learn it here.

No, we don’t have active and meaningful faculty support on a full-time basis. We do, however, have active homophobia and violations of the university anti-discrimination policies. It strikes me as funny that a law school, an institution whose basic core curriculum includes training in contracts, can’t do anything about enforcing its own promises. Here is a hypothetical for you 1Ls: I enrolled under, and in substantial reliance upon, a non-discrimination policy. The Law School allows use of its facilities for military recruitment, the practices of which openly discriminate against homosexuals – a recognized class under the university anti-discrimination guidelines. What result? Is it ridiculous to think some form of estoppel might be claimed?

Whatever it tries to do, the gay community just can’t seem to get over a few final hurdles. We’re receiving no help. How can it be that Harvard Law School, the bastion of liberalism (quoth the Federalist Society) kowtows to orthodoxy, allowing what is certainly the most influential law school to remain woefully silent on such a current issue of concern? How, in good conscience, can this institution proudly declare that they have equipped gay law students for the profession of the future? How can the administration say they are providing the education par excellence with such a glaring deficiency?

Lambda was founded twenty-five years ago because of a lie from one of its members. Will the administration, by failing to keep its word on nondiscrimination, lie to its students?

A non-discrimination policy that doesn’t protect from discrimination sounds like a policy even Justice Scalia – another HLS alum-can live with. In an oft-cited dissent from Lawrence v. Texas, Justice Scalia warns of a nation succumbing to the homosexual agenda. The proof in the pudding, he says, is the AALS non-discrimination policy extending protection to homosexuals.

Harvard’s own actions have now mirrored Scalia’s dissatisfaction with AALS policies, even as 25 years of graduates gathered to reaffirm their dedication to equality. Perhaps some alumni have more clout than others.

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