The Price of Equality

BY JEFFREY TOSSEL

Last week’s announcement that the Law School would be re-allowing military recruiters on campus was a great disappointment to members of Lambda who believed that the administration would stand by its stated commitment to “the principle of equal opportunity for all persons, without regard to sexual orientation.” This October 6 and 12, HLS will welcome to campus an employer that openly discriminates against some of its students. This is a grievous wrong that a school committed to values of justice and equality can allow only at the expense of its own principles.

Many parties can be held responsible for this state of affairs. Notably, the Department of Defense made the controversial (and, we believe, wrongheaded) decision to reinterpret the Solomon Amendment as giving it the right to ignore law schools’ non-discrimination policies. In addition, Harvard University has displayed a curious reluctance to pursue or even participate in litigation to protect its own or its students’ interests. But for a brief moment we would like to concentrate on what the future may bring instead of analyzing what has gone wrong in the past.

In December, the Supreme Court will hear oral arguments challenging the constitutionality of the Solomon Amendment in Rumsfeld v. FAIR, a lawsuit brought by a coalition of law schools (of which Harvard is not a part) against the Department of Defense. There is a distinct possibility that the Court will eventually side with the DOD and grant it the right to use funding that goes mainly to Harvard’s Medical School and School of Public Health as a trump card to sway the Law School to its will, despite the military’s refusal to comply with HLS’s non-discrimination policy. If the Court does rule in the DOD’s favor, the question that must follow is: what will Harvard do next? Will it allow its “non-discrimination policy” to exist in name only, passively hoping for a change of heart or a change in political administrations? Or (as we hope) will it take action to protect its own academic independence and its students’ dignity?

Up until this point, the basic assumption of many involved has been that Harvard cannot possibly forego hundreds of millions of dollars in funding for medical and public health research, and thus, with its “hands tied,” it must comply with the DOD’s demands. And yet many have also assumed that if, for example, the law school were pressured to accept an employer that openly discriminated on the basis of gender or race, the University would act against the discrimination without regard for the federal monies that might be lost.

What could Harvard do in such a situation… and why has it not done so now? Let us pause to remember that Harvard is the richest academic institution in the world, with a $22.6 billion endowment at its command. To say that such a privileged powerhouse has its “hands tied” is laughably defeatist, and experience shows that Harvard is no stranger to protecting its interests when the federal government takes a position at odds with them.

First, the University could employ its considerable political influence to press for changes in the law. With Harvard’s vaunted connections to the D.C. establishment, we hope that the University would use its political cachet and connections to lobby Congress to either repeal the military’s discriminatory “Don’t Ask, Don’t Tell” policy, so that recruiters could interview on campus without reproach, or to protect the ability of academic institutions to be free from discrimination. The University could also pursue a litigation strategy on legal grounds different from those in Rumsfeld v. FAIR (so far, the University’s only legal action in three years has been to sign onto an amicus brief filed last week).

If those options fail, Harvard could consider weaning itself from the mighty federal research dollar, as it has done in the past – the most prominent example being the Harvard Stem Cell Institute. Because the federal government severely restricts embryonic stem cell research funding, in April 2004 Harvard took it upon itself to raise several million dollars in private funding to make the Institute a reality. Harvard was willing to sidestep government restrictions when research was at stake – why not search for funding alternatives when the rights of its very own students are implicated?

These are not the only options available, nor are they necessarily the best ones, but they are options. This issue has too often been framed as the difficult choice between two evils – foregoing millions of dollars in research funding, or rendering meaningless a non-discrimination policy that is meant to protect all Harvard students, regardless of race, gender, religion, or sexual orientation. If the government continues to insist that research money must be accompanied by discrimination against LGBT students, we hope that Harvard will have the integrity to investigate alternatives and take action on behalf of itself, its students, and its academic ideals. As an op-ed in last week’s Wall Street Journal snidely remarked, “Now we know where Harvard stands when given the choice between sticking to its ‘principles’ and feeding from the government trough.” We hope President Summers and Dean Kagan will prove these naysayers wrong.

Jeffrey Paik, Beth TossellCo-Presidents, HLS Lambda

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