Dean Kagan should be congratulated for attending the Lambda conference over the weekend and delivering the welcoming remarks. It was obviously a hard decision for someone who had decided only the previous month that Harvard Law School would not join the FAIR lawsuit or file its own legal action challenging the Solomon Amendment. Kagan could bet that many in the room were not happy with her decision.
But the dean came anyway, and even helped arrange funding for the event. She used her ten minute speech and five minute question-and-answer session to clarify why she made the decision, despite her personal disdain for the military’s discriminatory policy. Kagan explained that no Harvard school had ever filed a suit independently of the university, and she seemed disinclined to break that tradition. Furthermore, the dean hinted at the university’s decision not to file a suit when she commented that some Harvard schools feared funding retaliation.
However one may feel about whether the dean volunteered enough information at this conference (as well as whether she should keep confidential many of her conversations with university administrators about this issue), Kagan has furthered the debate about this issue by at least acknowledging some of the factors that went into her decision. Individuals on both sides of the debate can now use this information to discuss the merits of HLS’s decision and to propose possible answers to some of these concerns.
Along these lines there are several options still available for the Law School and the university. It is still possible the university administrators could change their minds or a contingency of professors could file their own suit. It is possible Kagan could break rank and file a separate suit on behalf of the Law School.
Lambda’s keynote speaker C. Dixon Osburn offered some further proposals, including using 1% of Harvard University’s federal funding to finance programs to fight “Don’t Ask, Don’t Tell.” While this represents a small amount of the university’s overall federal funding, it would represent a large commitment to fighting an obviously morally repugnant rule while ensuring at least some that our school’s anti-discrimination policy is not completely for sale.
Finally, there is the possibility that New Jersey District Court Judge John C. Lifland will grant FAIR’s preliminary injunction staying application of the Solomon Amendment. If the injunction is granted, and there is speculation the decision could come soon, it is unclear what this could legally mean for the Law School. For instance, would it be possible to bar Air Force JAG officers from recruiting on campus without fear the federal flow of funds would dry up? Questions like this will arise if FAIR is successful and the Law School should be ready to discuss such issues.
Kagan made a good start on Friday with her public comments about HLS and Solomon, and she should be commended for that start. We have confidence she will continue to speak out and answer student’s questions as developments occur in the twin lawsuits and students struggle to reconcile their notions of how an educational institution should protect all its students from discrimination and the reality of how this school has not.