Law Faculty Make Case Against Military

Prominent Harvard Law School professors called on the University yesterday to file suit against the government to prevent on-campus military recruiting.

Speaking at an afternoon rally in front of Langdell Library, Frankfurter Professor of Law Alan M. Dershowitz said he would ask the faculty to vote in support of litigation to reinstate the Law School’s nondiscrimination policy.

Until this year, the policy had barred the military from official campus interview sessions because of its “don’t ask, don’t tell” policy.

“I don’t see the downside of litigating, of seeking at least a declaratory judgment in the courts,” Dershowitz told a crowd of about 250. “It would be better to fight the fight…as a lawyer, one does not accept arbitrary action from the government.”

And if the University will not reconsider a decision to sue, Dershowitz said after the rally that he would be not only willing but “anxious” to mount a suit along with other Harvard professors or students.

The Law School announced in August that it would exempt military recruiters from its nondiscrimination requirements in the face of a Pentagon threat to prohibit Harvard from receiving $328 million in federal research funding.

The Pentagon review of Harvard’s recruiting policy, which began last December, was authorized under a 1996 law, the Solomon Amendment, that requires schools to give military recruiters equal access to campus facilities.

In August, many members of Lambda, the student-run gay rights group that organized yesterday’s protest, said they understood that the Law School had little choice but to allow recruiters for the Judge Advocate General Corps (JAG) to use its Office of Career Services.

But now Yale University, which announced Oct. 1 an “interim” suspension of a similar policy prohibiting JAG interviewers from its fall interview series, has pledged to push either in the government or in the courts for a redetermination of whether its restrictions actually violated the Solomon Amendment.

“What Yale’s decision does is point out that maybe Harvard’s hands weren’t so tied,” said Sarah Boonin, a second-year law student and Lambda spokesperson, before the rally.

Assigning Blame

In an interview yesterday, University President Lawrence H. Summers defended Harvard’s decision as a practical response and said the University was not lagging behind Yale—which has not committed to a court challenge.

“From what I’ve read, they’re simply announcing an intention to do things we’ve already done,” Summers said.

Professor of Law Janet Halley, who has written a book on gays in the military, criticized Summers as the force behind what she termed Harvard’s “capitulation” to the military.

“President Summers wanted the Law School to cave,” she said. “We could not find anywhere the will to resist Summers.”

Noting that Summers was “conveniently left off the stage” of the rally, Halley said she wished the school had “forced Summers to involve himself, either by suing or by forcing the Law School to comply.”

“We were too weak to force Summers to force us,” she said, calling the Law School dean’s and administration’s presence at the rally a “compensatory” action aimed to celebrate gay identity without changing policy.

Law School Dean Robert C. Clark said afterward that Halley’s account was “speculation,” and that the University and Law School administration had agreed that it would be unlikely that a fight would “make a positive improvement in policy.”

Professor of Law John C. Coates, a member of the Law School Placement Committee, which discussed the Harvard response with the administration this summer, said following the rally that he also saw the decision as a mandate from the central administration.

“It was clear from the beginning of the Placement Committee’s involvement that administration representatives described his position as being unwilling to take any risk,” he said.

Coates said that while the University had lobbied informally within the Pentagon to maintain its original policy of allowing recruiting through a Law School student group, the central administration would not permit Harvard to make a formal appeal that might have sacrificed the funding.

Legal Challenge

A 1998 Pentagon review found that allowing the campus student group—the Harvard Law School Veterans Association—to schedule interviews fulfilled the Solomon Amendment access requirements. Because of this prior decision, law professors have said that a challenge to the new, stricter interpretation of the law might be successful.

In an interview yesterday, Summers said that discussions with the University General Counsel’s office and with an outside lawyer retained by the Law School indicated that challenges would be futile.

“I had been advised that our prospects, that the interpretation on which we relied was highly uncertain,” Summers said, adding that a successful legal challenge would invite a Congressional clarification of the policy.

Dershowitz said during his speech that fears of Congressional action should not stop Harvard from attempting a fight.

Both Coates and Halley said they would consider joining colleagues in an independent legal action but would have to consider the case’s chances for success. Coates said it might be difficult for the professors, rather than the University or students directly impacted by “don’t ask, don’t tell,” to prove they had legal standing to bring suit.

In brief remarks to lead off the rally, Clark called the “don’t ask, don’t tell” policy “dysfunctional, counterproductive, and profoundly unjust and unfair.”

Afterward, he said the law school would make further “explorations” into a response to the military and said that he was in contact with the dean of Yale Law School.

Clark said that whether he would personally sanction a legal challenge by individual students or professors depended on the case’s arguments.

A Full Interview Schedule

The protest came on the same day as on-campus JAG interview sessions by the Navy. Last Friday, for the first time in decades, the Office of Career Services (OCS) arranged Pound Hall recruiting sessions for the Air Force.

At both interview sessions, members of Lambda signed up for individual appointments with JAG recruiters to discuss military discrimination.

Lambda member Lindsay Harrison, a third-year law student, said she believed all of Friday’s appointment slots were filled by protestors. Of the four students who interviewed between 1:30 p.m. and 3:30 p.m. yesterday, three were protestors. The interviews began at 1 p.m. and were slated to end at 6 p.m.

OCS Director Mark Weber said he could not release the sign-up lists but that he thought they showed a mix of protestors and serious interviewees.

Boonin, the Lambda spokesperson who filled interview slots both Friday and yesterday, said she told the JAG officers that she respected military service but that she felt lying about her sexual orientation would compromise the integrity that is at the core of military service.

One protestor, third-year law student Becky Flynn, said she and her partner, a doctor, would both like to join the military but recruiters said their civil union in Vermont was too open a statement to allow service.

Flynn said she would like to work for a government agency but had been particularly interested in JAG because it emphasizes courtroom experience early on.

Janson Wu ’00, a third-year law student and a resident tutor in Mather House, said the JAG officers told him that most soldiers who were discharged for their sexual orientation had voluntarily come out and that so-called “witch hunts” were rare.

“I don’t know what actually is happening, but if there’s even one investigation of someone, then I think that’s wrong,” Wu said.

The interviewee who said he was not protesting declined to give his name.

Boonin and Flynn were among about a dozen students who stood on the Langdell steps during the rally, sporting signs telling of the financial and moral costs of “don’t ask, don’t tell.”

One sign advised Vice President Dick Cheney, whose daughter Mary is openly gay, to “let your daughter serve.”

Aside from Clark, Dershowitz and Halley, other speakers at the rally included Assistant Professor of Law Heather Gerken, who said that arguments for excluding gays from military service were the same as those formerly excluding women and African Americans.

Others, including three former military officers, spoke of ongoing violence against gays in the military.

Lambda president Adam Teicholz, a second-year law student, led a moment of silence to conclude the rally.

—Staff writer Elisabeth S. Theodore can be reached at theodore@fas.harvard.edu.