The suit, led by Boston College law professor Kent Greenfield, comes almost a year after prominent HLS professors called on Harvard to file suit against the government for virtually forcing the school to violate its own anti-discrimination policies.
In addition to first amendment watchdog groups, Greenfield said individual law schools signed onto the suit anonymously as part of the Forum for Academic and Institutional Rights (FAIR).
But Harvard is not among the law schools under the umbrella of FAIR, according to a statement released by HLS Dean Elena Kagan on Saturday.
“Harvard Law School is not a member of this organization, but I share its commitment to nondiscrimination,” Kagan said in the statement. “I look forward to the day when all Americans—regardless of sexual orientation—can serve their country with honor and distinction.”
At the first HLS reunion of gay, bisexual, lesbian and transgendered alumni on Saturday night, Kagan further addressed the issue of military recruitment on the HLS campus. “The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,” she said. “The need to create this exception makes me and makes almost all the members of the Harvard Law School community profoundly unhappy.”
Greenfield said that he solicited every law school to take part in the suit and that he had “personally been in contact with several Harvard Law School professors.”
Society of American Law Teachers (SALT) Co-President Michael Rooke-Ley said that his organization initiated the suit, but that FAIR was created and added to the list of plaintiffs to allow law schools to participate without fear of retribution.
“Without exception, we found that law schools wanted to sign on, but were worried about repercussions from the military and government,” Rooke-Ley said. “For many years, law schools were regarded as hypocritical and disingenuous by talking about anti-discrimination but then allowing employers to come on campus who would only hire men.”
“Now with the military, we’ve got to not only talk the talk but to walk the walk,” he added.
Last fall, Frankfurter Professor of Law Alan M. Dershowitz said that he was “anxious” to mount a suit against the government, but decided to wait until he had more support from the gay community.
HLS announced last August that it would exempt military recruiters from its nondiscrimination requirements because of a Pentagon threat to withdraw $328 million in federal research funding from the University.
HLS’s policies had previously barred the military from official campus interview sessions because of its “don’t ask, don’t tell” policy.
The Pentagon’s review of Harvard’s recruiting policy began in December 2001 under the 1996 Solomon Amendment. The amendment requires schools to give military recruiters equal access to campus facilities.
Many of the nation’s law schools had similar anti-discrimination policies and refused to allow military recruiters on campus.
Now, every law school in the nation that receives federal funding of any kind—including Harvard, Boston University, BC, Yale, Columbia and New York University—has “permanently caved to military pressure,” the lawsuit reads in reference to the financial pressure the government imposes on the law schools.
The public plaintiffs in the suit include the newly begun FAIR, a New Jersey membership corporation, and the Society of American Law Teachers (SALT), a New York corporation of over 800 law professors which Dershowitz co-founded.
HLS student and president of HLS Lambda Amanda C. Goad said that Kagan has told her that the law school’s participation in military recruitment was not her decision.
Climenko Professor Charles J. Ogeltree, an outspoken opponent of the Solomon Amendment, said he felt Harvard’s choice not to be part of FAIR came from the University administration, not the law school.
Dershowitz said he heard about the lawsuit for the first time through the press.
“We would never tolerate discrimination against Jews even if Congress told us to,” Dershowitz said.
“Why should we tolerate discrimination against gays because of financial extortion?” he said.
Goad, who said she knew about the lawsuit two weeks ago, said she feels betrayed because the law school hasn’t fought the government’s policy harder.
“Former Dean Clark and Dean Kagan express how much they disagree with this policy, but they are not stepping up to the plate when there is an opportunity,” Goad said. “It makes us feel like they don’t really care. It feels very painful as a student.”
—Staff writer Lauren A.E. Schuker can be reached at firstname.lastname@example.org.
—Andrew C. Esensten contributed to the reporting of this story.