Kendall Thomas

Kendall Thomas is the Nash Professor for Law at Columbia Law School as well as the co-founder and director of the Center for the Study of Law and Culture. He has worked at Columbia since 1984. His teaching and research interests include U.S. and comparative constitutional law, human rights, legal philosophy, feminist legal theory, Critical Race Theory and Law and Sexuality. In addition to his work for Columbia Law School, he also has a long history of involvement with ACT UP.

Interviewed by former GHAP Advocate, Will Hughes — July 25, 2012

Q: From what I understand, you were quite involved in ACT UP?

Thomas: I was very involved in ACT UP. I was very involved in ACT UP. Not from its inception but certainly by the end of its first year of existence, I was very involved in ACT UP, and was in fact a founding member of the Majority Action Caucus, which was the people of color caucus in ACT UP. So, a lot of my history of involvement in these issues at the University is interwoven with my experience of ACT UP and my experience at the university informed and in really profound ways motivated me to get involved in AIDS activism outside the University. The environment on campus obviously mirrored the reality of the larger society with respect to what I think can only be called a panic atmosphere that existed in the early days and you have to remember that for several years, we didn’t know what was causing people to get sick and die, and people were dying in numbers that were just devastating. There were memorial services every week. To be not quite, well I came to Columbia in 1983. I was 26, and I came to study in the LLM program here in the law school and to teach legal writing. And I remember the last thing my mother said to me the day I left California where I had been living between my graduation from law school and the beginning of work here in New York was that she was worried about AIDS and what it would mean for me as a young gay man of 26, and so the extraordinary thing about life for any gay man coming of age, well there were two things actually. And certainly this is true in 1986. Our lives were bookended by on the one hand this terrifying epidemic and on the other by the sense that we were strangers to the law, because the Supreme Court in 1986, in a decision called Bowers vs. Hardwick upheld the right of states to criminalize and punish people’s private sexual conduct and the law was targeted at gay men primarily. So it was really a very hard and for many people hopeless time, because people who were my age really had come of age sexually at the height of the so-called sexual revolution.

We were young children during the 1960s. I was ten in 1967, the summer of love, and I remember watching on TV, expressions of affection that crossed gender boundaries and sexual identities as they had been conventionally presented to me and opened up possibilities for me in the years when I came of age sexually that simply did not exist for people, for gay men, who were born and who came of age before my generation. So the sense of possibility with which I came of age as a young gay man was profoundly shaped by this ethics of liberation and from a recognition of the ways in which questions of sexuality, of sexual practice, of sexual pleasure were political.

So when what we would later come to call AIDS emerged, it was a specter that haunted us and affected us I think in ways that we’re still trying to come to terms with. It made me and a lot of other people in my generation question the very values and worldview that the movements in the 1970s for sexual freedom and feminism had presented to us and there were people both within the gay community and outside of it who were more than willing to draw a connection between AIDS and what they saw as the excesses of the late 1960s and 1970s and the loss of a world (which never really existed) in which men were men and women were women and homosexuals stayed in the shadows. There was no public homosexual culture in this country until the emergence of the so-called sexual revolution. So it led to some profound questioning and frankly more than a few of us wondered, “Maybe they are right. Maybe there is a connection between this terrible disease which is taking the lives of all of these really beautiful young men and the sexual ethics that emerged during the 1970s.”

And for me, the great contribution of organizations like the Gay Health Advocacy Project is the force and the intelligence with which they resisted and rejected the kind of moralism that saw AIDS as a punishment for the norms and practices of sexual freedom that had emerged during the 1970s. And as the name of the organization made clear, GHAP within the context of the university community, framed questions of HIV and AIDS as questions having to do with individual and public health and not as questions having to do with personal and public morality. And it took its lead in that regard from an organization that preexisted both GHAP and ACT UP, namely Gay Men’s Health Crisis. I think that was a crucial and important decision by Laura Pinsky and some of the other administrators and students that were involved in the formation of GHAP. Because it established the terms of the conversation that would take place in the University as a conversation about questions of health, wellness, and disease, and not as questions about morality, and normal or abnormal, or as the word was then used, deviant sexual practices. You’ve got to remember, that the people who were administrators, most of whom were older than me. These were people who had grown up and come of age sexually in the 1950s, when this language of deviance and pathology was the dominant language in which the public discourse about the lives of homosexuals, because we didn’t really have the word gay, were discussed. So it was both as a strategic matter and as a matter of principle really important to insist that any discussion of the University‘s HIV /AIDS policy be firmly anchored in a focus on the health of members of the University community and that it be evidence based. Because there was a lot of panic at the University and this was what led to the creation of the committee about the supposed risk represented by gay men on campus simply in virtue of the fact that they were gay. Because one of the peculiar and still to me puzzling aspects of HIV/AIDS discourse during that time was what I’ve called its homosexualization, this idea that AIDS is a gay disease. And the sheer taking for granted ness the notion that when we were talking about AIDS we were talking about gay men and only about gay men was very hard to contest. And this in the face, of course, of the fact that the demographics of infection included lots of people. People who injected drugs, people who came from certain parts of the Caribbean, but the notion popularized at the time by people like William F. Buckley etcetera, that an “A” should be branded on the buttocks of people with HIV, and that there should be a quarantine. All that stuff, these ideas were actually being circulated as reasonable to responses to HIV/AIDS among larger culture, so that was part of the backdrop against which the discussion took place at Columbia.

I don’t really remember how I was drawn into the conversation or came to be a member of the committee. I was, by 1986, I was an assistant professor at the law school, and frankly I just don’t, I don’t remember, I wish my memory were better. I do remember being in certain rooms, but I remember that the organizing on the part of people associated with what would eventually be known as the Gay Health Advocacy Project, was absolutely compelling. And I think it had to do, in a large part, with the fact that these were people who had deep experience in grassroots political organizing and strategy. So based on their work in gay liberation, on the anti-war movement in the 1960s and 1970s, and feminism, we were able basically to outflank the University. The University, as is so often the case in these policy making venues was concerned with developing whatever would best developing a policy that would best insulate it from liability. So it was a liability driven project from the point of view of Low Library and the General Counsel’s office. Whereas we saw it as a policy that was driven by a concern for the protection of the dignity and full and equal membership in this community of everyone. Including the gay men who had come to represent the face by 1986 of the epidemic. So it meant being proactive and actually developing and presenting specific policy recommendations. No, a student should not be able to request and receive a dorm room transfer solely on the basis of the fact that his or her assigned roommate was gay or lesbian. The specter of AIDS should not be allowed, in other words, to condone or license homophobia as a part of our common life at this University. And I think we were effective at keeping the focus on and framing the issue as an issue about the health of the members of the community, and insisting on an evidence based approach, so that no component of the policy or let me put it this way, every component of the policy, whether we were talking about students, whether we were talking about staff, was grounded in the best medical knowledge at that time about the nature of AIDS and HIV transmission.

Q: And it seems that everyone kept trying to insist on a case-by-case basis, rather than a blanket policy.

Thomas: Well the University wanted, you know it’s always in the interest of the University to have a case-by-case policy, because—we talk in the law about the difference between rules and standards. So if they’re able to work with a standard, they are able to affect a norm, rules that are supposed to govern their conduct. That allows for the use and abuse of discretion. And we were not naïve about the dangers of discretion. So instead of this case-by-case approach, we insisted there be clear and generally applicable norms of conduct, rules of conduct for addressing the particular case, rather than investing the University administration with the authority to make decisions with which, frankly, could have been colored by prejudice and the kind of moral panic, and moralization of HIV/AIDS which was not at all uncommon at that time, even in New York City.

Q: Could you talk a little bit more about what the committee was like in terms of — it seems like you and Paul and Laura were in one contingent, and the way she’s [Laura’s] described it, in the other side were the people from the General Counsel’s office.

Thomas: Right, right, right. Well, Paul, one of the smartest people I’ve ever met, Paul Douglas, was a very impressive and very intimidating fellow. He was the very embodiment of the traditional Ivy League ideal. I don’t know if you’ve seen photographs, but he was very handsome, very tall, very charming. And truly lovely person. And disarmingly, because here you have this Harvard graduate, Columbia graduate student, representing the face of the gay community at the University. We just decided that our job was to always be better prepared than anyone else on the committee. And to always come into the room by virtue of our preparation, ready to drive the conversation for that particular meeting. And I think, well it obviously worked. Because it meant that we could set the terms of the committee’s work, because of the work we had done outside the rooms of the committee meetings.

Q: And how did people react the people who were really advocating for the case-by-case basis, the Low Library, staunch defenders?

Thomas: Well, there was a range of reactions, I mean I remember in particular one person from the General Counsel’s office, who was just out of his depth. I mean, we weren’t, we weren’t adversarial, no it was one of those, we all want the same thing here, obviously, we were just better prepared. Clearly, in particular, there were a couple people who had come from General Counsel who had their marching orders and they wanted to have maximum flexibility to deal with each and every case on its own bottom and we saw the dangers of that and were able to preempt what might otherwise have happened, and what I’m sure happens all the time on these committees, I mean I served a few years ago on the first committee that considered the question of whether or not to permit ROTC to return to campus, and it was much the same dynamic. But if in fact, the University is an institution committed to and governed by norms of reason and rationality, and rational discussion, debate, deliberation, and decision making, those ideals have to be honored and they can’t be disregarded simply because of fear or anxiety in certain people or panic of the kind that characterized the general public response to HIV/AIDS. So you know, the committee’s work was bounded by the fact that we are a University community, and as such, are committed to a norm of reason. The University is the institution in our society, in our democracy, which institutionally represents the ideal of reason, so those folks whose temptation was to adopt a policy that would allow for irrationality and prejudice and the like to shape the response to HIV/AIDS on campus, they were already at a disadvantage. So Laura, Paul, and I, we were being true, and I think most of the members of the committee saw this, we were being true to the deep normative commitments of the Columbia community in insisting the focus stay on the question of health and insisting the policy be, the policy we struck on be evidence based.

Q: Were you involved in the writing of the fact book, or rather the creation of the committee pamphlet?

Thomas: You know, I must have been, but I don’t know how closely involved. You know, I was teaching, so I can’t really—I just have these mental images, as one often does, of being in rooms around conference tables, and I do have some memories of some very amusing conversations after the meetings with Laura and Paul about what had gone on during the committee discussion, but I don’t know how intimately I was involved in that. The fact book, I know, Laura wrote that, the GHAP fact book.

Q: What about what the AIDS committee distributed.

Thomas: I was involved in that, that was committee work. So I was involved in that. I think it was a good policy, I’d have to go back and revisit it, but I doubt seriously that there would be anything in there that I had signed onto about which I’d be ashamed.

Q: There are all these memos, dating back to 1982, 1983, because I think it was an employee sued the University for discrimination, so they’re being released because the Central Files of the University have this hold time of 25 years and now they’re finally being released. But I found one where after the pamphlet was released, it’s someone saying, “There’s this great fact book that they wrote, even though we are kind of, even though the University shouldn’t be associated with this, it would still be a good idea to distribute it.” It’s just crazy to think that that was the mode of thinking in distributing information about an epidemic that was ongoing.

Thomas: Well, I mean again, you have to understand the climate of fear that characterized the early years of the epidemic. People were saying outrageous things, Simon Watney did some terrific writing at the time, Douglas Crimp did as well, about the moral panic that allowed for this kind of fusion of homophobia, this suturing of homophobia to HIV/AIDS. And I gave you the example of William F. Buckley, and people thought that was a perfectly serious, responsible thing to say. So we were, and of course, the University administration is always worrying about its accountability to powerful alumni who really saw, I’m sure, were none too happy that Columbia would be associated with educating people about HIV/AIDS. It’s really quite ironic that one of the premiere institutions of higher learning in the country would be squeamish about educating the public or its constituents about HIV/AIDS, but again it was liability driven, so if the University had officially endorsed or sponsored or been associated with a fact book that said you couldn’t get HIV from a kiss, and that turned out not to be true, and they might be subject to litigation. I would love to see some of those documents because at that time, you have to remember, we weren’t yet in the digital era, so people I think were much more likely to commit to writing.


Thomas: But the tensions between a policy driven by concerns about liability and a policy driven by concerns about responsibility are not specific to this particular question. I’m sure if you looked at records involving other matters you would be struck by the extent to which the same kind of concerns are at work across the specific policy areas, for better or worse. But here we are, GHAP is still around performing an important service for students who weren’t even alive at the time the University’s policy was developed, and that it seems to me is a testament to the vision of people like Laura Pinsky and Paul Douglas, David Klotz, Bruce Francis, and a testament to the ability notwithstanding our very real fear and concern about our own lives and our own health to work toward a policy that served the common good of the University community. I also should say that although that one of the things that distinguished this committee from other committees upon which I’ve sat is the extent to which the interests and concerns of employees did not take a backseat to a focus on students, and I think it set a nice and commendable precedent for seeing the University as a community of people beyond faculty, students, and deans. Frankly it’s not clear to me that the kinds of resources and skills that made it possible to do the work that we did in 1986 are available to us. As I said earlier, the practical experience with movement politics of various kinds that some of the members of the committee brought to their work and that people involved in GHAP brought to their work is not something that can be easily be acquired these days. There was a short lived moment of Occupy Wall Street, but AIDS activism is such, as the recent film “United in Anger” showed, that it is part of our history now, not necessarily part of our present. Then again, there are policies in place now that are relatively progressive, so maybe the forms of activism we needed then are forms of activism that have become obsolete. Something new is required. But it was a very, very important and valuable introduction to University politics for me. I was involved, I can’t remember if this was the same time, I was involved in the University Senate, and the experience of being on the committee that helped fashion the HIV/AIDS policy was very helpful to me around other issues, like the anti-divestment campus which took place around the same time. So it was a heady time, and one that I feel fortunate to have been a witness to and I suppose a participant in.

Q: Could you talk briefly about your involvement in ACT UP and some of the other activist groups?

Thomas: Sure, I went to ACT UP because as I said earlier, we were hearing every week about people getting sick, going to the hospital and dying. And we heard about this group downtown, and there were a number of Columbia folks who were involved. I went with my friend Jeff Engel who I had met here at Columbia when he was in the MBA program at the Business School, and he had decided by that point that he didn’t want to be a wheel in the cog of the financial, a cog in the wheel of the financial services industry and had gone back to school to take the courses he needed to apply to medical school and he, Jeff was involved and a very impressive undergraduate who was a friend, whom I’ve had to have met through Laura, named Thaddeus Grimes-Gruczka. Thad was one of the young members of ACT UP. But it was, it was an experience for me of direct action politics, for which I had in some ways I been prepared, as I told you, I came of age during the Civil Rights Movement, so I had a very clear memory of marching and boycotting and watching people being arrested. My mother was a civil rights activist and a local officer in the Congress of Racial Equality so I grew up marching to the courthouse and picketing stores and all that. Unlike a lot of the people involved in ACT UP that kind of politics was not new to me. ACT UP provided not just community and a vehicle for contesting the AIDSphobia and the homophobia of that time which was like the second epidemic, the phobias. But it provided a community of solidarity and support and care and, I don’t think it would be too much to say, love. I mean relationships I made with people in ACT UP have been an enduring part of my life since, and we were mad enough and scared enough to do crazy things. I don’t think the kinds of activism that took place in ACT UP would be possible now in the age of the national security state, and a lot of it would just be shut down and responded to punitively. We routinely were able to get desk appearance tickets from judges who were sympathetic to what we were doing although they couldn’t say it, and people were released on their own reconnaissance systems. It was a very different time, but it was a necessary movement. An absolutely necessary movement, which politicized these questions of health in a way no movement before had done, and ACT UP’s legacy I think, one didn’t see the kinds of rhetorics of activism, etc. that one has gotten used to seeing and hearing around cancer and various other diseases before ACT UP. ACT UP, the breast cancer movement, for example, that kind of consciousness raising just did not really occur. Or to the extent it had taken place, it wasn’t through the prism of activism, it was through the prism of a kind of sympathy or charity, right. So this notion that healthcare is a right, that was front and center in the politics of ACT UP, I think is something that the AIDS activism movement bequeathed to the country as a whole and that the country doesn’t even recognize, doesn’t even recognize how much it owes to that movement. It was a radical claim that healthcare is a public good to which all the members of a democratic society are entitled. We had this chant, “Healthcare is a right, I said Healthcare is a right. [claps]” One of the other things I loved about ACT UP was the way in which it was a body politics, which was very important at the time. Again, I mentioned earlier a lot of the work around AIDS took place in the shadow of the Supreme Court’s decision in Bowers v. Hardwick in which gay men and lesbians had deemed strangers under the law. And as a group of people who had no rights, that punitively heterosexual Americans had to respect and there was this language accordingly of AIDS as God’s punishment, so the solidaristic ethics and politics of ACT UP gave a lot of us a way to use our bodies, these bodies that were being vilified and demonized and pathologized as political markers for contesting the dominant discourse and practices and policies around gay and lesbian sexuality to which the phobic response to AIDS was intimately connected. You know, ACT UP was not without its problems, I think that it was difficult for some people in ACT UP to make connections that were obvious to others of us in ACT UP, between HIV/AIDS and racism, between HIV/AIDS and sexism, between HIV/AIDS and economic injustice, because more than a few people involved in ACT UP had grown up in and become fully socialized to believe in themselves as entitled and privileged. So the investment banker with Kaposi’s lesions or the commercial law firm partner who succumbed to pneumonia found themselves subject to the same kind of diminution and denigration of their humanity that women and people of color in this country had been fighting for years.


Thomas: That was an important part, really for me of my own not just my political formation, but my intellectual formation, which fed directly into my work as a legal scholar, my interest specifically of issues in law and sexuality and human rights and the like. In 1992, I guess, I offered the first course that had ever been offered at this law school about law and sexuality, and it was a confluence of AIDS and AIDS activism, anti-homophobic politics, and the legacy of the gay liberation movement, and the emergence of what would become known as queer theory. That I was fortunate enough to come of age professionally under that confluence. All these years later, so next year that would have been thirty years ago, for me. So if one thinks in terms of historical time, generational time, I consider myself very fortunate to have been in a position to be a witness, participant in these different movements. Because in deep and important ways, that experience allowed me and other folks, other gay men in particular of that generation, to live our lives more fully than any generation of gay men before us had had an opportunity to do and perhaps to live our lives more fully and intensely than any generation of gay men after us will do. It was not without its pain and suffering, but we refused to be victims. And became the agents of our lives in ways that have made a positive and enduring contribution to the practice of freedom in this country. So I’m glad about that and glad for that.