But while Dean Clark’s candor in describing the difficulty he had making this choice is refreshing, the University should have challenged the Air Force’s interpretation of the Solomon Amendment, the federal statute in question. For the last decade, recruiters were allowed to come to campus when invited by student groups, but the law school did not sanction their visits. This mutually beneficial arrangement simultaneously allowed the law school to uphold its non-discrimination policy and permitted recruiters to maintain a presence on campus. Even temporarily allowing military recruiters to visit while the litigation was underway in order to keep the funding would have preferable to capitulating without a fight. Though a legal challenge may not have ultimately succeeded, by declining to appeal the Air Force’s decision, the law school missed an opportunity to defend its values in the courtroom.
University President Lawrence H. Summers also lost an opportunity to show a strong commitment to diversity and nondiscrimination on the basis of sexual orientation by remaining essentially silent on this issue. While Summers ultimately endorsed Clark’s decision, he issued no statement expressing his regret at having to comply with these regulations, even though the issue impacted the entire University. His silence is particularly troubling because it shows that while he has been working closely with the military—participating in a recruitment video and expressing his uneasiness with ROTC’s peculiar funding arrangement at the College—he has not been forceful enough in condemning the military’s discriminatory policy.
While Harvard and its law school have often behaved as watchdogs for equal rights, in this case, their bark was bigger than their bite.