BY ALLISON WHITE
I WAS SURPRISED BY DEAN Kagan’s listserv sermon regarding the morality of the Solomon Amendment. But when the Pope e-mails the Law School his critique of Chevron’s Nondelegation Doctrine, I’ll be really impressed.
Dean Kagan’s Monday morning e-mail outlining in stark terms the school’s stance on the Solomon Amendment was a bewildering mix of institutional policy and the Dean’s take on morality. Please don’t let my attempt at humor take away from the seriousness of this development: Dean Kagan’s haphazard amalgamation of moralisms and legalisms is a dangerous sign of things to come. In this, her first public response to a critical issue in the Law School community, she has fundamentally refused to separate the public stance of the Law School from her own “deep distress” at a policy that – although supported by many students, passed by Congress and signed by her own former Presidential employer – she finds “repugnant.”
Before I go further, let me spell out what I do not mean to criticize. First, I do not begrudge Dean Kagan the right to pass moral judgment in her own heart, in discussions, or – if she is so brave – within the pages of The Record. If her search for the “sweet mystery of life” leads her to such moral judgments, then so be it. Justice Kennedy allows it, and I am in no position to disagree.
Second, I do not oppose the Dean’s decision to notify students of the school’s decision to breach its antidiscrimination policy. The school is breaching its own policy, and students should be aware of such an event and the grounds underlying it.
That said, let me make clear my grievance: The text of Dean Kagan’s notice moved far beyond her role as the Dean of the Law School. Her admonition was an abuse of her position of academic (but certainly not moral) authority, and it should give students pause to consider whether their new dean is capable of understanding the difference between her, the office she occupies and the school that she leads.
The email (available here) initially purported to explain the school’s decision to allow the Solomon Amendment, a federal law, to trump the school’s antidiscrimination policy (contrary to rumors, the Law School bylaws do not include a Supremacy Clause). After two paragraphs of explanation, however, the Dean shifted from official explanation to personal condemnation: “This action causes me deep distress” … “I abhor the military’s discriminatory recruitment policy” … “This is a profound wrong – a moral injustice.”
Were this merely a singular personal addendum, I may have bit my tongue. But immediately thereafter, the Dean fell back into “official” character: “The Law School remains committed” … “The Law School remains opposed … .”
She ends with personal invitation to attend a Lambda conference on the matter. This conference, mind you, boasts panels so ideologically skewed that make not the slightest effort to purport “debate.” Effectively Dean Kagan has invited the entire School to an anti-Solomon rally, where she will in fact deliver the official Welcoming Remarks.
In sum, Dean Kagan’s message is one of personal invective adorned by the robe of institutional authority. Her halfhearted invitation to students to engage in debate either by reply e-mail or by attendance at the Lambda conference can be taken as nothing more than a charade.
I need not expend too much ink on the sheer partisanship of those who would defend Deacon Kagan’s sermon. If a politically conservative Dean (this is, of course, hypothetical) dispatched an e-mail explaining Harvard’s student health facilities but interspersing her explanation with heated criticism of the “morally unjust,” “repugnant” realities of abortion, many students and faculty would react with expected vigor … and I suspect that Lambda would not dissuade them. Are supporters of the Solomon Amendment afforded less respect on this campus because the Dean – or is it “the Law School” – finds their stance “repugnant?” Of course the Dean purports to welcome all ideas … but we can take the hint.
Dean Kagan owes the community an explanation, if not an apology. More importantly, she owes herself pause to consider whether her tenure would be improved by a refusal to separate her own morality from the School’s policies.
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The preceding thoughts aside, let me add one further point: I still can’t help but chuckle at Dean Kagan’s halfhearted defense of the School’s acquiescence:
“[Dean Clark] determined, as did all his counterparts at other law schools, that he should make an exception to the School’s anti-discrimination policy in the face of this threat to the University’s funding. I left this exception in force this year ….”
To paraphrase George Bernard Shaw: Dean Kagan, if I offered Harvard 16% of its budget in order for it to accept moral “repugnance,” would it accept?
Yes, Adam, of course Harvard would.
Dean Kagan, if I offered Harvard ten dollars for it to accept moral “repugnance,” would it accept?
What? Adam, what kind of university do you think this is?
That, dear Dean, is an established fact. Now we’re just haggling over the price.
Adam White is The Record’s Editorial Page Editor. His column appears weekly.