Kagan states her case before Lambda


From left to right, conference moderator Adam Tiecholz and panelists Aaron Belkin, C. Dixon Osburn, David Sheldon and Glenn Ware
An unidentified student was among those who stood to voice their own concerns to the dean.

In her most public comments yet about the Solomon Amendment lawsuits and Harvard Law School’s military recruiting policies, last Friday Dean Kagan explained why HLS decided not to join the suit, but remained guarded about her discussions with Harvard University administrators.

That same day lawyers for the Forum for Academic and Institutional Rights (FAIR) were delivering oral arguments in its lawsuit challenging the Solomon Amendment. FAIR is hoping New Jersey District Court Judge John C. Lifland will order a preliminary injunction staying the application of the Amendment.

Addressing a group of students and lawyers at Lambda’s conference on October 10, Kagan admitted at the beginning that nothing she was going to say would “be particularly satisfying to people in the room who have particularly strong views” on the issue.

“[Dean] Clark took the position that we cannot give away other people’s money,” Kagan explained, continuing that it would be one thing if this was primarily Law School money. “The Dean of the Law School should not just say we are continuing with our own policy” when that will have such a strong financial impact on the rest of the university.

The dean then addressed one of the core questions that many have been asking: Why hasn’t HLS joined the lawsuit? “In the end it is the university’s decision,” she attempted to answer. “No Harvard school has ever sued individually. I am just a part of the Harvard administration. It is a complex decision made even more complex” because separate departments have different needs and there may be fear of retaliation if the school sued.

She went on to explain that other Harvard schools have different policies and some allow military recruiters on campus, which would make it difficult to coordinate.

Even when prompted later by a question from an audience member, Kagan would not talk about certain discussions she had about the issue. “Whatever advice I give to the provost of the university or other deans should be kept confidential,” she said. But, she answered the questioner directly, “my personal views match those of the Law School.”

In fact much of what Kagan said was a recital of her personal abhorrence for the military discriminatory policy. She said, “I am committed to working with Lambda and others . . . on making progress for the elimination of” discriminatory policies in the military. Earlier in her welcoming remarks she referred to the email: “I put out this statement . . . just after the military began recruiting because I think it is important for the dean to speak out. There are particularly hard questions one must confront when deciding to send out such an email.”

Only two days later, Lambda President 2L Amanda Goad sent Dean Kagan an e-mail explaining the recent developments in the FAIR lawsuit and the possibility for a preliminary injunction. “In that case,” Goad writes, “with a relevant injunction in place, we assume and expect HLS would revert to its pre-2002 policy of barring JAG recruitment.” If the injunction was ordered and HLS chose to bar military recruiters from on-campus interviewing, the consequences could be immediate for the Air Force JAG recruiting scheduled for October 17.

Goad appealed to civil rights and asked the dean to take immediate action against military recruiters at HLS as soon as the injunction is ordered. Goad also hoped to discuss these matters with Kagan, as well as “other developments in the nationwide fight against Solomon, including the membership in FAIR of a ‘peer’ law school and alternative strategies for Harvard involvement in litigation.”

Echoing words Kagan had delivered only two days before, Goad writes, “We know you oppose discriminatory recruiting on campus, and we wish to work with you on taking meaningful practical steps to restore non-discrimination.”

In response to Goad’s challenge, Kagan made this statement to The Record: “The Law School’s change of policy was predicated on a change in the legal environment. If the legal environment were to change back, that would be a basis for returning to our previous policy.”

Kagan’s public statement was in fact her welcoming remarks for the two-day Lambda conference: “Solomon’s Minefield: Military Discrimination after Lawrence and the Coming Fight over Forced On-Campus Recruiting.”

Following Kagan, keynote speaker C. Dixon Osburn extolled the sheer number of homosexuals who had been kicked out of the military because of their sexual orientation: 150,000 since World War II. “Imagine if Wal-Mart fired three people a day for being gay,” Osburn analogized. “There would be shareholder revolt. But this is how many gay people [on average] are discharged a day by the Pentagon.”

Osburn is the co-founder and Executive Director of Servicemembers Legal Defense Network (SLDN), which has provided legal services to more than 5,000 service members affected by “Don’t Ask, Don’t Tell.” He estimates there are about one million gay, lesbian and bisexual veterans in the United States.

In looking to remedies for “Don’t Ask, Don’t Tell,” Osburn said the common wisdom is that the policy has to be overturned by Congress or the Supreme Court. Osburn continued, “The uncommon wisdom is whether the President could issue an executive decision overturning ‘Don’t Ask, Don’t Tell.’ This would present an interesting conflict between the branches.”

Osburn attempted to turn the usual Government argument for why it has the discriminatory policy, unit cohesion, on its head: “‘Don’t Ask, Don’t Tell’ hurts military readiness because of the number of soldiers we have lost” and the costs in investigating what are section 125 offenses, which criminalizes sodomy for both heterosexuals and homosexuals.

Osburn also cited a recent Fox News poll that found 64% of those living in the U.S. favored gays openly serving in the military.

Osburn then turned to what Harvard should consider doing. “The University as a whole has made a decision to weigh the costs and benefits of a constituent’s civil rights. If this were an issue that affected any other constituency this would be a different analysis.” But, he continued, “Harvard is telling students that are gay, lesbian or bisexual they are not worth fighting for.”

Osburn extolled the university to use 1% of its federal funding to fund activities that fight homosexual discrimination. But, he cautioned, “the fight needs to be on ‘Don’t Ask, Don’t Tell,’ not just the Solomon Amendment.”

The conference included panel discussions on “Don’t Ask, Don’t Tell” in the wake of Lawrence v. Texas, the Supreme Court decision last summer that struck down sodomy laws across the nation, as well as discussions as to whether homosexuals should even want to be members of the armed forces.

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