Harvard Rules (47 page)

The Clinton administration never enforced the Solomon Amendment, partly because it did not like the military's ban on homosexuals and partly because the amendment seemed to connect unrelated policies. (After all, many Americans receive government benefits, such as Medicaid, welfare, and Social Security, without having to prove that they have registered for the draft.) But when the Bush administration took office in 2001, and especially after the terrorist attacks of September 11, the Pentagon stepped up its enforcement of the Solomon Amendment. One big reason was that the military needed lawyers for its Judge Advocate General (JAG) program, and most prominent law schools did not permit military recruiting. That was less a byproduct of 1960s' protest than a function of the more modern concern over discrimination against gays. Harvard and most other law schools, deeply concerned over civil rights, did not allow employers that practiced discriminatory policies—any employers, not just the military—to use their employment offices to recruit students.

The Pentagon wanted to change that policy, and with the Solomon Amendment, it had a powerful lever with which to do so. In the spring of 2002, the Pentagon notified then-dean Robert Clark of the Harvard Law School that HLS was in violation of the law. If the school would not allow the military to recruit lawyers from among its students, Harvard could lose every single dollar the university received from the government—some $412 million in the 2002–2003 fiscal year, the vast majority targeted for scientific and medical research. In May, Clark issued a press release saying that the law school had no choice but to reverse its policy, and would now allow military recruiters to interview on campus. Clark explained that the law school could not afford to jeopardize funding for the entire university because of its own principled position.

Straight and gay alike, many HLS students were furious that their school had buckled under with barely a peep of protest. Certainly there was a huge amount of money at stake. Were there no legal options the school could pursue? With Clark leaving and new dean Elena Kagan coming in, however, the law school administration chose not to pick a fight with the government. At a “meet the dean” forum in April 2003, when one student asked Kagan about whether HLS had any plans to file suit to block enforcement of the Solomon Amendment, Kagan demurred. “We have no plans to reopen the issue that I know of,” she said. “My own view is essentially congruent with that of Dean Clark's—[the Solomon Amendment] is immoral policy, but when university funding is at risk…”

“But are we considering litigation?” the student asked. “It looks really bad when the government just says, ‘This is the law and this is what you have to do,' and the law school says, ‘Well, okay.'”

“That depends on the merit of the legal argument” against the Solomon Amendment, Kagan answered, and confessed that she was not well versed enough in the matter to give an opinion. The subject was changed when the next student questioner complained that the business school did a better job of branding itself than the law school.

Harvard wasn't the only university affected by the Pentagon's crackdown, and by the fall of 2003, a number of other schools were ready to fight the Solomon Amendment. In late September, a coalition of law schools and law professors called the Forum for Academic and Institutional Rights, or FAIR, filed suit against the Pentagon, charging that the Solomon Amendment was discriminatory and unconstitutional. Harvard was not a member of FAIR; Elena Kagan explained that joining the coalition would reduce the university's flexibility. But a number of HLS students and professors thought that Kagan was simply stuck in a hard place—a new dean trying to balance her personal opposition to the Solomon Amendment versus the opinion of the president who not only had appointed her, but was widely believed to disagree with her on this issue. Two weeks later two student groups at Yale Law School filed a similar suit against the Department of Defense. Members of HLS Lambda, the law school gay students' organization, were frustrated that Harvard was lagging behind. One in particular decided she had to prod the university in any way she could.

Her name was Amanda Goad, she was from Richmond, Virginia, and she was in her second year at Harvard Law School. She was petite and quiet, almost shy, with dirty-blonde hair and wire-framed glasses—and tougher than she looked. Part of that toughness came from her parents, who grew up “dirt poor” working on tobacco farms in Kentucky and sometimes, Goad said, had “an irrational objection to being told what to do.” Her parents preached the value of education, and Goad was a bookish kid; in 1992, at the age of thirteen, she won the National Spelling Bee. (The winning word was
lyceum.
)
That
was pressure. But Goad knew how to stick up for herself. Her mother was a news junkie, and dinners at the Goad household abounded with arguments about politics and current events. “There's something liberating about being a nerdish kid,” Goad said. “It allows you to be argumentative. And smart.”

For a girl in a conservative southern city who was beginning to realize that she was gay, Goad was also confident. That same year she went to summer camp and kissed her first girl. As it turned out, the girl was straight, but Goad and she would always remain friends. At age seventeen, she came out to her parents. It wasn't easy, but on the whole, they were supportive of their daughter.

Still, red-state Virginia was not an easy place to be gay. Throughout Goad's adolescence, the case of Sharon Bottoms was constantly in the local and national news. Bottoms was a Virginia woman, a lesbian, who lost custody of her biological son after a series of state courts ruled—in a lawsuit brought by Bottoms' mother—that lesbians are unfit parents. The case was a constant subject of conversation, and when it came to Richmond to be argued in the state supreme court, Goad remembered her ninth-grade teachers talking about “those faggot lawyers coming to town.” The ruling was upheld, and Bottoms has never regained custody of her son. Faced with that kind of hate, Goad had to be tough.

As an undergrad at Rice University, in Texas, Goad had participated in a successful movement to win domestic partner benefits for the faculty. Now, at Harvard, she geared up to fight the Solomon Amendment. Among other things, she helped organize students to participate in mock interviews with the military recruiters. The students would sign up to meet with the recruiters and show up, bright-eyed and well dressed, for their appointments. Then, as the interviews were ending and the recruiters were expressing their interest—these were Harvard students, after all; they were impressive—the students would announce that, by the way, they were gay. Which was sometimes true and sometimes not—but the students wanted to show the military that not only did it want to hire smart, talented people who happened to be gay, but it also couldn't even
tell
they were gay.

In the spring of 2003, Summers came to a town hall meeting at the law school, and students asked him whether the university would consider a legal fight against the Solomon Amendment. According to Goad, Summers answered that his lawyers had informed him that Harvard didn't have a case, but that if the students researched the matter and determined that there was a case, “come back to me.”

Goad was skeptical. “We knew that, because of his politics, he wasn't interested,” she said. “This was around the time that the ROTC video [in which Summers appeared] came out.” A president who was appearing in advertisements for the military probably wouldn't have much interest in suing the Pentagon.

In the fall of 2003, Goad helped to circulate a petition urging Summers to file or join litigation against the Solomon Amendment. By the time she sent it to Summers in early November, almost 1,100 members of the Harvard community had signed it. She also helped distribute a similar letter among the faculty. Forty-seven out of eighty-one law school professors put their names on it, which was more impressive than it might sound—Harvard law professors do not quickly sign on to activist petitions, and getting forty-seven of them to agree on anything was an accomplishment. Moreover, “some people were afraid to sign because of Summers,” Goad said. Particularly on the part of the junior faculty, “there was a fear of retribution.” After all, Summers was now taking an active role in law school tenure nominations, and he'd already shown in the Cornel West situation that he did not approve of professors getting involved in politics. Or at least politics that conflicted with his own.

Goad and the other members of HLS Lambda sent the letter to Summers on October 22. His response, a letter back, was dated November 21. “Let me be clear that I regard the Solomon Amendment, as it has recently been interpreted and applied, as unsound and corrosive public policy,” Summers said, adding that it “offends ideals of nondiscrimination and individual dignity. By raising the specter of a devastating loss of federal funds for universities…it invokes a form of sanction whose severity and coercive quality seem draconian.

“At the same time, having weighed the circumstances, I do not believe it would serve the best interests of the University to enter into a lawsuit challenging the Solomon Amendment. Particularly in light of the highly constructive partnership that exists between higher education and the federal government in a great many areas, 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.”

His private response was more specific. A week before he wrote to Goad, Summers met with a delegation of law school professors. While he was opposed to discrimination, he told them, he just didn't think taking on the Solomon Amendment was a winning fight at a time when Republicans controlled both the White House and the Congress. There had been no great wave of opposition to the military's “don't ask-don't tell” policy regarding gay servicemen and women. Maybe if opposition to the policy had reached a critical mass, he might support an official challenge by Harvard. But he didn't see that developing anytime soon. Instead, Summers said, university officials would work behind the scenes, negotiating privately with Pentagon officials. Summers had said the same thing at a faculty meeting some months before, when professors asked about Harvard's response to the Patriot Act, the anti-terrorism law that allowed the FBI to monitor library users. We'll take it up with the feds, Summers had said. But if indeed Harvard's Washington lobbyists had done so, nothing had come of their conversations, and professors wondered if Summers' line hadn't been just a way of shutting them up.

When the law professors suggested to Summers that Harvard's involvement could accelerate a shift in public opinion regarding anti-gay discrimination, that Harvard could serve as a leader in the fight, he remained unmoved. “He didn't mind faculty suing [the Pentagon] individually,” said one of the professors in attendance. “It takes the pressure off him. But he doesn't see this as something worth fighting.”

Granted, Summers was hardly the only university president reluctant to challenge the government; none of the presidents whose law schools were involved in litigation chose to throw the weight of their university behind it. Summers' letter, vague and legalistic though it was, laid bare a new reality for America's most prestigious universities: They had become so dependent on federal aid, so addicted to it, that they simply could not afford to challenge a federal mandate on a matter of principle. This was particularly true at Harvard, which year in and year out ranked as one of the top academic recipients of government largesse. That was what Summers meant by the “highly constructive partnership” between universities and the government “in a great many areas.” The unfortunate result was that Harvard, the world's richest, most influential university, was willing to abandon an official policy of nondiscrimination because it refused to jeopardize federal money.
Veritas
was not worth $400 million.

Anyway, most of those areas of “constructive partnership” involved scientific research that Summers cared about more than he did the issue of gays in the military, one reason why his language sounded curiously antiseptic. The Solomon Amendment wasn't “unsound and corrosive public policy”; the amendment “
as it has recently been interpreted”
was unsound and corrosive. Rather than being offensive and discriminatory, the policy “offends
ideals
of nondiscrimination and individual dignity.” The distinctions were subtle, but Summers' words gave the impression that he was more afraid of offending Republicans than he was upset by discrimination.

While no one would say that Summers supported discrimination, the issue clearly did not stir his moral passions—not even by the coolheaded standards of an economist. He very much supported students who wanted to participate in ROTC, but he did not particularly worry about gay students who wanted to serve but couldn't. Summers respected power, and gays simply did not have enough of it to force the issue to the front of his agenda. He would not jeopardize the pursuit of scientific discoveries by challenging the government on a policy he considered of marginal importance.

And, possibly, Summers had a point. Maybe, in the grand scheme of things, the Solomon Amendment
was
of marginal importance. After all, as he often said, what would historians remember about our era two hundred years from now? His answer: the scientific revolution in our understanding of human biology. In all likelihood, the number of gay people who cared about serving in the military, or even cared about being discriminated against by the military, was fewer than the number of people who could be helped by scientific discoveries coming out of Harvard labs. Perhaps saving lives
was
more important than protecting them from indignity and discrimination.

But was the choice really so stark? If Summers cared about the issue, couldn't he have found a way to speak out about it? To do more than writing a carefully hedged letter? He needn't have been antagonistic; he need only have led. After all, he had one of the most visible podiums in the country, if not in the world. On the question of anti-Semitism, he'd shown his willingness to use that podium for something he considered important. Why not stand up for another minority group feeling the pain of prejudice?