Over the past three weeks, legal challenges to the Solomon Amendment have spread from a suit filed in New Jersey by the Society of American Law Teachers and the Forum for Academic and Institutional Rights (FAIR) to the recent filing in Philadelphia by twenty-one law professors and six students from the University of Pennsylvania. The UPenn professors and students made the following statement in their complaint: “To deny federal financial grants and contracts to the University and the Law School because of the Law School’s anti-discrimination policy would violate plaintiffs’ rights to due process and equal protection of the laws.”
Compare this statement to a sentence from Dean Kagan’s most recent e-mail to the Law School community: “The Law School remains committed to the principle of equal opportunity for all persons, without discrimination on the basis of sexual orientation.” Knowing what we know of HLS’s refusal to join the FAIR lawsuit or, up to this point in time, to file its own legal action against the Department of Defense, which one has more bite for students who are gay, lesbian, bisexual or transgender? Which institution seems like it is really going to bat for students who may not fall under one group’s definition of a military-worthy group?
This is not to say HLS has made a wrong decision in not presently challenging the Solomon Amendment. There are certainly contrary views on this issue that deserve to be scrutinized and openly debated. But the problem is that Dean Kagan has not come forward with any statement as to why HLS is not challenging or advocating Harvard University to challenge the Solomon Amendment. The absence of such a statement means the absence of meaningful debate. It is one thing for Harvard to back down in the face of hundreds of millions of dollars in federal funding; one can disagree with that decision and yet understand why it was made. So far the administration has not publicly stated why an educational institution dedicated to “the principle of equal opportunity for all persons” has not challenged a law that clearly prevents them from doing just that. Why is it that former Dean Robert Clark said the new military recruiting policies did “not reduce the Law School’s commitment to the goal of nondiscrimination on the basis of sexual orientation,” and yet never explained why the Law School did not take legal steps to reach that goal?
Dean Kagan has made attempts to explain her personal disdain for the military’s discriminatory policy while maintaining that it is still the law of the land. After reading her most recent e-mail one senses that the dean is grappling with an obviously difficult decision that she thought (or maybe a higher-up thought) had to be made. She claims that the military’s policies tear at the fabric of our community and leave men and women with an urge to serve their country out in the cold wearing only civilian clothing. Great. You feel these students’ pain. You empathize with their unfortunate situation. But as their Dean, are you willing to explain why you are not doing something about it in the legal system?
At this time, The Record is not suggesting that HLS has made a wrong decision in not joining the FAIR lawsuit or is failing its students by not filing its own lawsuit challenging the Solomon Amendment. What The Record is suggesting is that Dean Kagan is not being forthright in explaining why these decisions are necessary. Law students, and especially those who cannot fully participate in OCI because of who they love, deserve more from their Dean.