Harvard Law, the Solomon Amendment, and 'Discrimination'

Law schools the country over — with 54 Harvard Law professors, including the Dean, at the forefront — argued in the Supreme Court this week that the Solomon Amendment, which bars federal aid to universities that prevent military recruitment on campus, is a violation of the First Amendment.  Supposedly, according to a useful summary of FAIR’s (Forum for Academic and Institutional Rights) arguments, “The Solomon Amendment and regulations promulgated thereunder violate the rights of Plaintiffs under the First Amendment to the Constitution of the United States, by imposing an unconstitutional condition on the receipt of federal funding, thereby impinging on Plaintiffs’ academic freedom, freedom of speech, and freedom to associate with one another in pursuit of common objectives.”

Aside from the patent absurdity of such an argument — if you don’t want to have military recruiters on campus, simply stop taking federal tax money! — there’s another point that needs to be made here.  Harvard Law’s entire objection to the military’s “don’t ask, don’t tell” policy is explained in their Office of Career Services (OCS) policy, which states “Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy.”  OCS is a recruiting tool for law firms and other law-related employers; clearly, under this policy, the military’s “don’t ask, don’t tell” is problematic.  (NOTE: Because Harvard wants federal money, the OCS website does explicitly except the military from their high standard of “tolerance.”)  

Here’s the problem: OCS allows law firms to continually recruit despite opening jobs only to members of racial minorities.  For example, OCS’ latest newsletter distributed information about the “Dorsey & Whitney Diversity Fellowship,” open only to “minorities”; the newsletter includes 10 other diversity fellowships, job offerings, or job fairs.  Here are jobs which are clearly not open to whites — here is a case in point of firms discriminating against people “on the basis of race, color, creed …”  Yet Harvard Law has no objection to that type of discrimination.  In fact, when one of my friends pointed this basic problem to Dean Elena Kagan, she wrote back, “I think we’re going to have to agree to disagree on whether our policy covers organizations that engage in affirmative action.  Thanks again for your thoughts.”  Tolerance for certain types of discrimination is apparently fine — tolerating the military, on the other hand, is a different story.

This constitutes a crackdown on free speech?

The basis for the current law school challenge to the Solomon Amendment is the idea that by attaching conditions to federal aid, free speech is being quashed on campus.  If free speech were truly being stifled, it would have been strange for me to find this email from Harvard Law Dean Elena Kagan in my inbox on September 20:

…I have said before how much I regret making this exception to our antidiscrimination policy.  I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust.  And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.  The importance of the military to our society — and the great service that members of the military provide to all the rest of us — heightens, rather than excuses, this inequity.  The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation.  And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.

Elena Kagan

So it was certainly strange to hear FAIR lawyer Joshua Rosencranz state before the Supreme Court that “What Congress really wants is to squelch even the most symbolic elements of the law schools’ resistance to disseminating the military’s message … This is a refusal to disseminate the messages of the military recruiters.”  Interesting.  

The Taney Controversy

At Harvard Law, there’s controversy brewing.  A famous portrait of Chief Justice Roger Taney, author of the infamous Dred Scott decision, is under assault.  This is the portrait so poetically described by Justice Scalia in his scathing Planned Parenthood v. Casey dissent:

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There  seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case — its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation – -burning on his mind. I expect that, two years earlier, he, too, had thought himself call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.

It is no more realistic for us in this case than it was for him in that to think that an issue of the sort they both involved — an issue involving life and death, freedom and subjugation — can be "speedily and finally settled" by the Supreme Court, as President James Buchanan, in his inaugural address, said the issue of slavery in the territories would be. Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

In any case, Dean Elena Kagan has decided that the Roger Taney portrait should not be hung on public display at the Law School library; rather, it should be hidden away (and sold, as rumor has it) because Taney’s Dred Scott decision is so offensive.  Students have to ask to see it, and may see it only if they get together a relatively large group.

No doubt, Dred Scott is one of the worst decisions in Supreme Court history.  Still, anyone who believes in the value of history should shudder when the dean of America’s most famous law school decides that an incredibly valuable portrait of a historic man is not worthy to be put on display simply because one of his decisions was dead wrong.  It’s pathetic that Taney is to be put in the back room of the law school library while HLS continues to proudly display portraits of far inferior legal figures (like Deborah Batts, the first black lesbian federal judge, who sits grinning in the corridors of Pound Hall).  If the elites at Harvard Law decide that great legal minds with whom they do not agree (rightly or wrongly) are to be barred from the hallowed halls of Langdell Library, how long before Justice Scalia is banned for his dissent in Lawrence v. Texas?