When Speaking Out is Not Enough

Harvard Law School Dean Elena Kagan did something courageous last week: She spoke out against the first appearance of military recruiters on the Harvard campus in decades, condemning their policy of intolerance toward openly gay and lesbian soldiers. In a school-wide e-mail, Kagan wrote that the military’s “don’t ask, don’t tell policy” is a “fundamental wrong” that “tears at the fabric of our own community because some of us cannot, while others can, devote their professional careers to the defense of their country.” Her resilience to stand up to the military was accompanied by a commendable student protest which involved placing pink soldiers in classrooms.

Not only did Kagan demonstrate resolve with her outspokenness, but her words were matched with actions. In January, Kagan and 50 other Harvard Law School (HLS) professors filed a friend-of-the-court brief backing the Forum for Academic and Institutional Rights (FAIR), a coalition of 20 law schools challenging the constitutionality of the Defense Department’s interpretation of the Solomon Amendment. For years the Amendment, which was introduced in 1996, had never posed a problem for Harvard, which has a long-standing policy of requiring employers to sign an anti-discrimination pledge in order to recruit on campus. But under the Bush administration, the military began using the Solomon Amendment as grounds to extort Harvard and other universities into granting waivers from their non-discrimination policies. The government threatened to withhold hundreds of millions of dollars in federal funding unless the military is provided unfettered access to recruit on campus.

While the law school had virtually no choice but to bow to the military’s demands—refusing to grant an exemption from the non-discrimination policy would have cost Harvard $412 million the last fiscal year alone—Kagan took the right stance by supporting FAIR’s efforts to prevent the government from strong-arming academia. The military’s discriminatory policies are immoral, and the U.S. government ought to be held to the same standard as any other employer attempting to gain recruitment access.

Kagan’s determination is all the more impressive due the central administration’s lack of leadership on this issue. The University has fallen far short of its duty to fight for equal rights and anti-discrimination. Although University President Lawrence H. Summers told The Crimson last November that “We all look forward to the day when any American regardless of their sexual orientation as regardless of their race or religion can serve in the armed forces,” he has chosen not to take any decisive action to back up his words. Most recently, Summers declared that Harvard would not join FAIR in its pending federal lawsuit against Secretary of Defense Donald H. Rumsfeld. This decision was unfortunate.

Harvard’s lack of initiative—combined with its quiet acquiescence to the U.S. government’s shameful tactics—is an embarrassment. The University’s conspicuous absence from FAIR—particularly when so many HLS faculty members have signed on in support—implies that a crude political judgment has taken precedence over standing up for principle. Harvard’s prestige and financial resources could make a significant impact on this case. By not pursuing litigation when there is so little at stake, the University has sent a message that the principle of nondiscrimination is somehow not worthy enough to defend.

Standing up to the discriminatory “Don’t Ask, Don’t Tell” policy requires more than an empty public relations statement. It requires action. We appreciate Dean Kagan’s strong statements opposing the appearance of military recruiters on campus; we wish the University would follow up in court and defend its right to issue its own recruitment standards. Those who argue that Harvard ought to stay out of political issues and refrain from putting its moral weight behind causes lose sight of the fact that passive inaction is not the same as neutrality. By allowing “unsound and corrosive public policy” to dictate Harvard’s procedures—and refusing to put up a fight against it—Harvard indeed sends a political message, and it’s one the University should be ashamed of.