Is Harvard more progressive than Berkeley?

BY PETER RENN

Is Harvard more progressive than Berkeley? That was the topic of an e-mail that I received from one of my friends last week. Although the answer to that question is normally a resounding no, it appears that, at least on the topic of military recruiting and school nondiscrimination policies, Harvard has Berkeley beat.

Last Monday, the Third Circuit ordered a lower court judge to issue a preliminary injunction barring the government from enforcing the Solomon Amendment on First Amendment grounds. The next day, Dean Kagan immediately reinstated the school’s nondiscrimination policy. Harvard Law School therefore became the very first school in the country to reinstate its nondiscrimination policy. Although Harvard as an institution has had a poor track record for defending the rights of its GLBT students, Dean Kagan’s decisive action on this issue was morally courageous. And she should be praised for it. What’s more, other schools should follow Harvard’s steps and immediately reinstate full enforcement of their nondiscrimination policies without exception.

As university counsels across the country pore over the 102-page opinion looking for clues as to whether or not the Third Circuit ruling applies to their own schools, perhaps the page they should focus on is the first one. The named plaintiffs in the case do not stop with the Forum for Academic and Institutional Rights (FAIR) (the coalition of law schools and faculties who have spearheaded the litigation). The other plaintiffs in the case include individual law professors, whose standing the district court affirmed in a ruling last year. Perhaps the most important plaintiff right now, though, is the Society for American Law Teachers (SALT), with over 900 members in law schools across the country. SALT, as an association, sued on behalf of its members. In an opinion issued last year, the district court held that “SALT members also meet the redressability requirement for standing. The alleged harm… would be redressed were enforcement of the Solomon Amendment to be enjoined and the schools reinstated their respective nondiscrimination policies as to the military.”

Because Harvard Law School has faculty members who are members of SALT, the preliminary injunction enjoins the federal government from enforcing the Solomon Amendment against the school. If the federal government nevertheless attempts to do so, it will be in contempt of court. And this doesn’t apply just to Harvard but to all law schools with faculty members who are members of SALT. Schools should take comfort in this fact, stop pussyfooting around, and immediately reinforce their nondiscrimination policies without exception.

If law schools with SALT members choose not to bar military recruiters from using the resources of their career services offices, they will plainly be in violation of their own internal nondiscrimination policies and, potentially, local and state antidiscrimination laws.

First, although nondiscrimination policies vary from school to school, most exceptions that were crafted for military recruiters were created explicitly because of the Solomon Amendment. At many schools, the applicability of the exception is tied to the validity of the amendment. If the Solomon Amendment can no longer be enforced against the school, then the school has no right, by its own internal rule structure, to continue treating its gay and lesbian students as second-class citizens.

Second, local and state antidiscrimination laws often forbid the aiding and abetting of employment discrimination, including discrimination on the basis of sexual orientation. For example, in the mid-1980s, the Philadelphia Commission on Human Relations ruled that Temple School of Law had violated a city ordinance that forbade employment discrimination based on sexual orientation (which contained an aiding and abetting provision similar to that in the Massachusetts antidiscrimination statute) by providing JAG recruiters with full access to its career services placement office. Although that case was eventually decided on the basis of federal preemption, the preliminary injunction enjoining enforcement of the Solomon Amendment removes the availability of that defense for most schools.

Moreover, the Philadelphia case was not unique: other institutions, such as the law schools at University of Connecticut and the State University of New York at Buffalo, were similarly found to violate state antidiscrimination laws in the early ’90s by allowing military recruiters to use of their career services offices. Thus, assuming that the Solomon Amendment may not be enforced a particular school, and that law school continues to help the military in its recruiting efforts, the school may face liability for violating state or local antidiscrimination laws (depending, of course, on the scope and construction of those particular laws).

Therefore, while Dean Kagan’s actions were undoubtedly correct from a moral standpoint, they were also legally prudent. With the coercive threat of the Solomon Amendment no longer hanging over our collective heads, there is simply no longer any excuse for schools to participate in discrimination against their gay and lesbian students.

2L Peter Renn is co-president of HLS Lambda.

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