HLS fails to defend non-discrimination policies

BY AMANDA GOAD

On September 19, a coalition of law schools known as the Forum for Academic and Institutional Reform (FAIR) filed suit against the U.S. Department of Defense in a formal challenge to the Solomon Amendment. That law, as attendees of last year’s Rally Against Discrimination know, forces law schools to let military recruiters participate in on-campus interviewing, lest the entire university lose federal funding. Workable compromise was possible during the Clinton administration, when JAG recruited at HLS through off-campus channels, but predictably, the Bush White House pushed a more draconian interpretation of the law. After a long hiatus and amidst much controversy, HLS in 2002 allowed representatives of Navy and Air Force JAG to participate in OCI. JAG does not hire openly gay, lesbian or bisexual lawyers, thus violating the law school’s non-discrimination policy. Then-Dean Clark expressed personal frustration at having to submit to the government’s demands, and his successor, Dean Kagan, has publicly and privately voiced strong opposition to discriminatory recruiting on campus.

The FAIR lawsuit focuses on how Solomon hurts not only students, but law schools as well. By tying funding to internal policy decisions, the Solomon Amendment violates basic principles of academic freedom. By penalizing all the other divisions of Harvard University for HLS-specific actions, it subverts the administrative authority of the Law School and illogically links funding for medical research projects to the inner workings of the Law School’s Office of Career Services. By forcing the school to admit recruiters who discriminate, Solomon systematically attacks the climate of non-discrimination and respect for diversity that years of activism have fostered on law school campuses across the nation. So *why* is HLS not participating in the suit? In several days’ brooding about this, I honestly haven’t found a good explanation.

It’s not a matter of finances. FAIR enjoys pro bono representation by the New York firm of Heller, Ehrman, White and McAuliffe, LLP . It’s not a frivolous lawsuit. Professor Tribe referred to the litigation as a “serious” and “weighty” piece of litigation in published quotes, and at least five other law schools are participating. It’s not a question of recrimination from the federal government, given that membership in the FAIR coalition is completely confidential. With no consequences on the horizon, why won’t our school go to bat for us?

Dean Kagan has impressed nearly everyone on campus in the past few weeks with her sincerity and commitment to improving student life. The day our lack of participation in the lawsuit hit the newspapers, she graciously spoke at HLS’s first official reunion of GLBT alumni. In that evening’s remarks, she criticized the Solomon Amendment and expressed pride in the professional, academic and activist accomplishments of the queer alumni over the last 25 years. The jarring contrast between those sentiments and the statement she released to the press a few hours earlier makes it seem obvious that the decision not to participate in the lawsuit rested not with Kagan, but with Harvard University President Lawrence Summers. Confronted on the Solomon Amendment issue at a “town meeting” in March, Summers expressed a willingness to fight the law if a strong constitutional case were laid out against it. Yet when the time came to sign onto a First Amendment challenge in federal court, his glib support evaporated. When the Supreme Court decided Lawrence v. Texas last June, a new era opened in the gay civil rights movement. On the other hand, gay and lesbian Americans still have much to accomplish before we become fully respected citizens. The Solomon controversy demonstrates this. HLS was a pioneer among law schools when it banned discrimination based on sexual orientation in 1979. Making an exception to the Law School’s nondiscrimination policy as it applies to race, gender or religion would have the nation, let alone the campus, up in arms.

Nonetheless, while the military uses homophobic hiring criteria, the Law School is standing idly by. Nondiscrimination policies, like any absolute rules, are completely meaningless if not enforced. Instead of standing up to be counted as a leader in the assertion of academic freedom and the defense of individual students’ rights, Harvard is telling the press and the campus community that it’s not interested in fighting discrimination. To gay, lesbian, bisexual and allied students at the Law School, that abdication of leadership is a painful shame.

The members of Lambda call upon our friends and allies in the Law School community to stand with us in calling for HLS to join in the FAIR lawsuit as an open party, and to include an explanation of this “exception” whenever its eviscerated nondiscrimination policy appears in print. On October 3, JAG recruiters will begin interviewing through the official OCI process. Because I am unabashedly in love with another woman, I’m not eligible to work for JAG. Dean Kagan said in an interview with the Boston Globe last weekend that she wants HLS students to love our school unabashedly. Gay, lesbian and bisexual students can’t possibly love an institution that, given an opportunity to defend its nondiscrimination policy, declines to do so.

Amanda Goad is President of HLS Lambda.

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