BY FRANZ CHENG
Weeks after HLS refused to join the Forum for Academic and Institutional Rights (FAIR) lawsuit against various government departments challenging the Solomon Amendment, the Law School Council (LSC) was sharply divided at its most recent meeting as to whether or not it should support the FAIR litigation.
LSC voted 21-10 in favor of sending a letter to the administration encouraging it to amend the existing anti-discrimination policy to include language that specified the military was exempted from this policy. This was as far as the council went in involving itself in the controversy, however, as it voted 17-14 against Lambda’s proposed resolution that would have sent a letter encouraging the Law School administration to join the FAIR lawsuit.
At the meeting Lambda president Amanda Goad urged LSC members to support the FAIR lawsuit and to add a disclaimer to the Law School’s non-discrimination policy saying it did not apply to military recruiters. Two-L Treasurer Tessa Platt spoke in opposition to Lambda’s proposals, arguing that if the LSC became politically entangled in the Solomon controversy then it may not be able to effectively discharge its obligations to HLS students. Additionally Platt felt that the LSC should tackle problems that were closer to home.
Intense discussion followed, with many students agreeing with Platt, while others argued that it felt like the FAIR lawsuit and non-discrimination policy addendum had been dropped in their laps without fair warning. Such sentiments were echoed when the vote to actually consider these issues barely passed.
LSC President and 3L Wade Ackerman, speaking for himself as LSC President, issued the following statements: “Numerous professors and Dean Clark stood on the steps of Langdell last fall and pledged support for our gay and lesbian peers, but what have we actually done to stand behind our non-discrimination policy? In my opinion, Harvard Law should have led the charge in this legal battle to stand behind the principal that people should not face discrimination on the basis of sexual orientation – period. I realize that many political factors are at play, but if we were asked to bend our non-discrimination policy on religion, race or a ground other than sexual orientation, I have to believe that our reaction would have been much more severe.”
Ackerman clarified that LSC has not taken an official position on whether or not the Law School should join the FAIR litigation.
Lambda board member and 2L Cristine Reynaert sees the controversy as a campus-wide issue and echoes Ackerman’s thoughts, saying that “Harvard’s decision to allow discriminatory recruiting on our campus, without a fight, is something that should deeply trouble every student who cares about civil rights, not just GLBT students. I have no idea why the military feels that a person’s sexual orientation interferes with [his or her] ability to practice law.”
Reynaert adds, “I cannot imagine that Harvard would have submitted to the government’s pressure so quickly and easily if the military had been seeking to violate any other portion of our anti-discrimination policy.”
Goad was also dismayed by the LSC’s reluctance to address political issues, saying that “it’s the job of our elected representatives, as borne out by the LSC constitution and LSC history, to represent the student body to the administration on all school-related issues, and what the school should do about enforcing its own policy is quite obviously a school-related issue.”
In comments to The Record, Platt said, “The role of the Law School Council is to represent the student body as a whole to the administration. For the Law School Council to remain a legitimate voice, it has to assure that the messages it sends are unquestionably the opinion of the student body.” Along those lines, Platt continued, “LSC must limit itself to the issues on which the overwhelming support of the student body can be clearly demonstrated. It is inappropriate for the Law School Council to take up an issue on which the student body is divided, endorse one position on that controversial issue, and then turn to the administration and say ‘this is the voice of the student body.'”
Platt ended, “To do so undermines the credibility of the LSC with both the administration and the students it purports to represent. This doesn’t leave interested students voiceless; with nearly 100 student organizations on campus, there exists a wide array of options for student advocacy without compromising the mission of LSC.”
Unsurprisingly, Lambda has not stood idly by. In addition to its flyers, Lambda is sponsoring a petition encouraging Harvard to join the ongoing litigation challenging the Solomon Amendment. The letter expresses concern about “Harvard’s failure to defend its nondiscrimination policy and about the precedent this may set for use of the federal spending power to influence academic policy and override institutional non-discrimination policies.”
An LSC member, who asked to not be identified by name, had a different point of view. The LSC member served four years of active duty as a soldier and paralegal in the U.S. Army JAG Corps. “Part of my job included the processing of discharges under Chapter 15 of army regulation 635-200, for homosexual conduct,” he began. “In my four years of doing these discharges, I have not encountered a single involuntary case where a rumor would turn into an investigation – I’ve never seen that.” He felt that “it’s in the interest of national security for the military to recruit the best and brightest minds in the country. Indirectly, [the ‘don’t ask don’t tell’ policy] is a matter of operational necessity, which is consistent with the sort of the position the current administration has taken with regard to national security.” As for military harassment against homosexuals, he says that “any harassment that goes on is not unique to the military or its policy – that seems to be the general attitude among working-class males of America.”
Matt Muller, a married 1L who served four years of active duty as a U.S. marine, expressed opposition to the military’s “don’t ask don’t tell” policy and questioned Harvard’s commitment to its anti-discrimination policy. Muller recounted personal experiences in which several marines, including one in his fighting unit who was eventually discharged, were harassed for their suspected sexual orientations. In another instance, the top-ranking marine in a fighting unit openly expressed his hatred of homosexuals. Due to such incidents, Muller feels that “[t]he U.S. military is a weaker fighting force.” He adds that he is “disturbed by Harvard’s failure to uphold its stated principles and protect its students. This is something we all should worry about, not just queer students. If the JAG recruiters refused to interview Muslims, or citizens whose parents or grandparents were born in a Muslim nation, would Harvard again fail to defend its First Amendment rights? How far can the government push before we respond? I would like to think that discrimination against any of the groups mentioned in our nondiscrimination policy would cause Harvard to act.”
This marks the second year that the military has been able to send its JAG recruitment programs onto the Law School for on-campus interviewing.
As The Record reported two weeks ago, the Law School’s twenty-four year old anti-discrimination policy was put to the test last year when the Department of Defense threatened to use the Solomon Amendment to withdraw $328 million of funding from Harvard University if Harvard University or its Law School continued to ban the military’s use of the Law School’s Office of Career Services. The military continues to maintain a “don’t ask don’t tell” policy regarding sexual orientation, contrary to most law schools’ anti-discrimination policies. Although the Law School received and still receives little funding from the military, then-dean Robert Clark reversed the ban, and JAG recruiters were allowed on campus.