For 25 years, Harvard Law School (HLS) has required all employers who desire official on-campus recruiting privileges to sign a non-discrimination pledge that includes sexual orientation as a protected category. The military had refused to sign the pledge, and as a result had been barred from campus. In 2002, the Pentagon—invoking a 1996 provision known as the Solomon Amendment—threatened to withhold several hundred million dollars worth of federal funding unless HLS granted military recruiters an exemption from the non-discrimination policy. Harvard acquiesced and amended its code, this fall allowing military recruiters on campus for the first time in a quarter century despite the government’s explicitly discriminatory “Don’t ask, don’t tell” policy.
The court ruling, which was handed down by the U.S. Circuit Court of Appeals for the Third Circuit, in Philadelphia, provides a much-needed safeguard for the First Amendment rights of private institutions to set their own policies and standards. The price of standing up for a principle, for refusing to bow under pressure and condone bigoted hiring practices, should not be millions of dollars in guaranteed federal funding. The 50 members of the HLS faculty—including HLS Dean Elena Kagan—who signed an amicus brief in support of the lawsuit challenging the Solomon Amendment deserve praise for recognizing the University’s need to affirm its commitment to bisexual, gay, and lesbian students. Their courage to speak out is admirable.
The resolve of these faculty members is especially impressive given that Harvard’s central administration has shown such a striking lack of leadership. Harvard, with its stature as a leader in higher education, should have stood by what it stands for. But earlier this year University President Lawrence H. Summers declared that Harvard would not be joining the coalition of 20 other law schools in challenging the government in court. The University’s decision to remain on the sidelines was shameful. As Frankfurter Professor of Law Alan M. Dershowitz charged this week, “We failed our gay and lesbian students. We failed our principles.”
History will not look kindly on Harvard’s inaction. By not pursuing litigation—particularly when so many HLS faculty members urged the University to do so—Harvard sent a clear message that it deemed its nondiscrimination policy and its queer students unworthy of defending. To be sure, Summers has publicly condemned the military’s discrimination, but his words were regretfully empty. Those who would argue that complacently capitulating to the government’s demands is somehow politically neutral ignore the unmistakable message Harvard sent by choosing to defy the wishes of its Faculty. That message was reprehensible.
On Tuesday, Dean Kagan reinstated the non-discrimination code, barring the military from official recruiting, and she should be commended for her swift action. But although this week’s ruling was a resounding victory against the Solomon Amendment, the fate of the law is not yet written in stone. The possibility remains for the government to appeal to the Supreme Court or the entire appeals court. As the case works its way through the court system, Harvard should redeem itself by doing everything it can to protect its right to ban recruiters who discriminate. Harvard cannot forget that there is injustice in tolerating injustice.