Law Students Discuss Potential for Change

(by Beth Hillman, J.D., Professor of Law at the University of California, Hastings College of Law)

October 15th, 2009 in Cambridge, Mass., a "don't ask/don't tell" panel moderated by Martha Minow (Dean and Jeremiah Smith, Jr. Professor of Law at Harvard Law School) drew a standing-room-only crowd to an auditorium in Langdell North. Organized by enterprising students in Lambda, Harvard's LGBTQ law student association, the panel gave students an opportunity to hear from both scholars and veterans of the policy about its impact and their hopes for repeal. The audience was engaged - and convinced that the policy ought to be changed. Real debate, however, occurred over whether the President ought to act now and whether universities should opt to honor their commitment to non-discrimination by restricting military recruiters' access despite the potential loss of massive federal funding.

Dean Minow opened the session with a comment about the wrongfulness of the anti-gay policy and her intent to encourage the spirit of open debate and free speech that the Supreme Court endorsed in its unanimous opinion in Fair v. Rumsfeld. In that case, Chief Justice Roberts suggested that more speech, not less, was the answer to law schools' frustration with the Solomon amendment, a statute that forces universities to forfeit federal funds unless they grant military recruiters equal access to campus alongside employers who agree not to discriminate against lesbian and gay students. I spoke next about the origins of don't ask/don't tell, the impact of the Solomon amendment, and the discharge process that the statute and implementing regulations establish. I also said that I was aghast that this misguided policy was still in effect some 16 years after it was drafted and implemented - a sentiment shared by everyone on the panel.

Tobias Barrington Wolff, the Jesse Climenko Visiting Professor of Law at Harvard and Professor of Law at the University of Pennsylvania, addressed several critical issues related to the fundamental injustice of the policy, which puts a servicemember at risk of discharge on the basis of any disclosure about being lesbian, gay, or bisexual, even if that disclosure is made in the course of seeking counseling from a chaplain or therapist, medical care from a health care provider, or solace from close friends or family members. The rest of the panel was devoted to exploring the personal toll of "don't ask/don't tell" and its negative impact on military readiness. Joan E. Darrah, who retired as a Navy captain in 2002 after nearly 30 years of service, and Joe Lopez, a West Point graduate who flew helicopters in Iraq and reached the rank of captain before being discharged for being gay, spoke movingly about the impact of the policy on their lives while they were on active duty.

Dean Minow then asked the panelists to discuss the potential for change. began by outlining the President's statutory authority to suspend implementation of the policy (see Palm Center report here). Professor Wolff followed with a discussion of the potential political costs, to gay and lesbian servicemembers as well as to the repeal effort, of executive action. Captain Darrah stressed that lifting the "ban" would be a "non-event" based on the experiences of other militaries that have permitted open service by LGBT people, and Joe Lopez asked everyone to contact his or her representative and senator to ensure they've been enlisted to support the effort for repeal of the statute. Questions from students pressed on the question of what Harvard ought to do, given the tension between the rights of its LGBTQ students and the military's ongoing discrimination, and how we can change the minds of military leaders about the wrongfulness of the policy's enforcement.

Today, Air Force recruiters visit Harvard Law School, offering the chance to join the judge advocate general's corps only to those students who are not gay - and who are willing to enforce a policy that excludes many of their classmates.


The End of DADT

I hope this topic starts to get more attention from the public and our elected leaders. DADT is a failed policy and it's time for it to end.

My colleagues and I have a blog and a podcast and we talked about DADT this week and we'll be talking about same-sex civil rights again next week.

Keep up the good work. Your blog is great!

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