The Hollow Promise of Non-Discrimination

President Lawrence Summers’ failure to defend Harvard’s policy against discrimination on the basis of sexual orientation, and to actively challenge the Solomon Amendment, betrays Harvard’s historic commitment to equal rights and shows disrespect for the principles on which the Harvard community is based. His acquiescence in the presence of discriminatory military recruiters at Harvard Law School not only violates the principle and policy of nondiscrimination, but is a particular affront to Harvard’s gay, lesbian, bisexual and transgendered students.

The Harvard Gay & Lesbian Caucus is composed of more than 3,200 lesbian, bisexual, gay and transgendered alumni, faculty and staff of Harvard and Radcliffe Colleges and the Harvard graduate and professional schools. Our mission is to develop, nurture and defend Harvard’s lesbian, gay, bisexual and transgendered community. Founded 20 years ago to press Harvard to include sexual orientation in its non-discrimination policy, the Caucus has been at the forefront of every battle over gay civil rights at Harvard. On the military recruiting issue, our members are so angry that over 300 alumni have contacted the Caucus board demanding that we express outrage directly to President Summers on his actions.

Harvard Law School has for many years required employers to affirm that they do not discriminate as a condition to their use of the facilities of the Office of Career Services. Other schools—including the Business School, the Graduate School of Education and the Kennedy School of Government—have similar policies. Last year Harvard gave military recruiters full access to the OCS, despite the military’s discriminatory policies, on the grounds that $328 million in federal funding was at risk if it refused to comply with the Solomon Amendment. While we deplore the presence of discriminatory recruiters at any price we acknowledge that $328 million is a daunting figure.

Fortunately, Harvard now has an opportunity to vindicate its principles without risking federal funding. NYU Law School and several other schools and faculties have formed the Forum for Academic and Institutional Rights (FAIR), which has filed suit in federal court to challenge the Solomon Amendment. The suit raises substantial constitutional and statutory issues, and has already survived a motion to dismiss. Harvard has been warmly invited to join FAIR. Again, we ask President Summers to allow Harvard Law School to join FAIR, or to bring its own similar lawsuit challenging the presence of discriminatory recruiters on Harvard’s campus.

President Summers’ letter of Nov. 21 to HLS Lambda rejects a similar request by Harvard Law School students, a majority of the Law School faculty and many other members of the Law School community. HLS faculty members are expected to sue, as have similar faculty groups at Yale and the University of Pennsylvania. These suits are well worthwhile, and we support them. But they are no substitute for direct involvement by Harvard as an institution. It is President Summers’ responsibility to defend the Harvard community.

President Summers also warns in his letter that “the University must exercise considerable restraint when it comes to the prospect of confronting the government through the quintessentially adversarial act of filing a lawsuit.” Yet it was he who recently directed the University to file an amicus brief in the U.S. Supreme Court case over affirmative action at the University of Michigan. We believe that allowing the Law School to join FAIR would be no more confrontational. Harvard would not be a party in the FAIR lawsuit, only a member of the organization and, as such, would send a powerful message to other universities who may be intimidated into silence by the federal government.

While the immediate issue involves discrimination on the basis of sexual orientation, discrimination against any minority is of concern to all minority groups. Would Harvard welcome a recruiter who hung a “No Negroes Need Apply” sign outside the interview room? Or “Christians Only”? Gays and lesbians deserve—and demand—the same level of equality enjoyed by other minorities.

Furthermore, for those members of the University community who may think Solomon is a parochial issue only involving gays and lesbians, think again. While the Solomon Amendment addresses Congressional displeasure over the barring of military recruiters, Congress may next decide to threaten withholding federal funding if universities distribute condoms, or offer abortion counseling or teach evolution. Challenging the constitutionality of the Solomon Amendment is essential then to maintaining basic academic freedom at Harvard. President Summers fails as our leader unless he defends the very core principle on which the free exchange of ideas is based.

We ask the University president to defend Harvard’s nondiscrimination policy, not to temper his support of the military. Within Harvard’s diverse gay, lesbian, bisexual and transgendered community many share his feelings about the military, and others no doubt would welcome the opportunity to serve our country in uniform. “Don’t Ask Don’t Tell” weakens our military by depriving it of sorely needed talent and distracting it from its vital mission. President Summers has every right to support the military, but he has no right to welcome their discrimination into the Harvard community.

It is argued that the military and the nation benefit when the best possible candidates pursue military careers. We don’t disagree. But denying military recruiters access to Harvard’s placement facilities in no way prevents interested students from learning about and pursuing military careers. As a matter of free speech, Harvard has always welcomed the expression of a broad range of opinions. Prior to last year military recruiters were allowed to recruit on campus at the invitation of a student group pursuant to this policy. We have no objection to the resumption of this practice so long as Harvard doesn’t offer administrative or other support.

In the modern era Harvard has been a leader in every great civil rights movement. Under Presidents Derek Bok and Neil Rudenstine Harvard took the lead among universities in recognizing the equality of its gay and lesbian members. Today the U.S. Supreme Court and the Massachusetts Supreme Judicial Court remind us that homosexuality does not deprive a person of fundamental rights. But Harvard under President Summers’ administration cooperates with those who discriminate against us. We ask him to reverse his decision and either join with other schools in challenging the Solomon Amendment or permit Harvard Law School to do so.

Thomas H. Parry ’74 is president of the Harvard Gay & Lesbian Caucus (HGLC). Robert W. Mack ’71 is past co-chair and ex-officio board member of HGLC. Warren Goldfarb ’69, a founder and ex-officio board member of HGLC, is Pearson professor of modern Mathematics and mathematical logic.