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FAIR Fight

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Professor Kent Greenfield takes on Rumsfeld et al.

Kent Greenfield at the main entrance to the law school. By Gary Wayne GilbertA Boston College law professor is leading the charge to have the 1996 Solomon Amendment declared unconstitutional. Last September, Professor Kent Greenfield filed suit on behalf of the Forum for Academic and Institutional Rights (FAIR), an organization he founded and chairs, to overturn the controversial law, which (among other things) requires universities to open their career services facilities to military recruiters or risk losing federal funding. FAIR's 20 members include law schools and law school faculty groups that wish to exclude the recruiters from their campuses because they believe the military discriminates against gays and lesbians.

According to Greenfield, about half of FAIR's members have chosen to remain anonymous, fearing reprisals from congressional supporters of the amendment and federal funding agencies. Neither Boston College nor BC Law is a party to the FAIR lawsuit.

BC Law's nondiscrimination policy prohibits discrimination against gays and lesbians, and, like most law schools, the school denied military recruiters access to its campus into the 1990s. After the Solomon Amendment passed in 1996, military recruiters were allowed on campus and permitted to recruit, but not given access to career services. Since law schools receive very little federal money, the move was not financially risky. However, a change in Department of Defense regulations in 2000 made it possible for an entire university associated with any noncompliant "sub-entity"—a law school, for example—to lose its defense funding if the sub-entity continued to deny military recruiters equal access. Faced with this potential cost, most law schools, including BC Law in 2002, acquiesced and opened up their career services facilities.

Greenfield, a scholar of constitutional and corporate law, got involved in the issue in 2002, when a group of BC law students spoke with him about wanting to challenge the amendment. Ultimately, he and four students formed an accredited course that focused on Solomon. "Over time I became convinced that the Solomon Amendment was imposing costs on the school, particularly on its gay and lesbian students by leaving them even more isolated, but also on its academic freedom," he said. FAIR grew out of Greenfield's discussions with law professors around the country interested in challenging the law in court.


IN A jujitsu-style legal strategy, the FAIR lawsuit cites two legal decisions that are commonly viewed as detrimental to homosexuals: Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995). In both cases the U.S. Supreme Court allowed a private group to discriminate against gays by barring them from, in one instance, scouting and, in the other, Boston's St. Patrick's Day parade, holding that the respective prohibitions had an "expressive purpose" deserving of First Amendment, free-speech protection. If the government declined to interfere when the scouts and parade organizers discriminated by excluding gays and lesbians, the lawsuit argues, then surely it may not interfere with a school's decision to exclude people, such as military recruiters, who discriminate against gays and lesbians. Explains Greenfield: "The federal government is saying, 'If you don't change your academic policies and philosophy, we will take away your federal funding.' They are, in this respect, forcing us to speak for them."

According to Greenfield, the Solomon case belongs to a class of suits against "unconstitutional conditions." "The law is, you can't condition [government] benefits on the giving up of a constitutional right," he said, offering the example of military pensions that, in the 1950s, were temporarily withheld from veterans who refused to take an oath of loyalty to the United States. That law and others like it were overturned by the Supreme Court on free-speech grounds.

Motions in FAIR's case, FAIR et al. v. Rumsfeld et al., were heard last fall by Judge John C. Lifland, of the U.S. District Court in Newark, New Jersey. On November 5, the judge denied FAIR's request for an injunction that would have suspended the amendment pending the outcome of the case. Also on November 5, he denied the Pentagon's motion to dismiss the suit, opening the door for a trial. FAIR meanwhile has appealed the judge's decision to deny an injunction. A three-judge panel of the Third Circuit Court of Appeals will issue a ruling, most likely in early spring.

Tim Heffernan


Tim Heffernan is a freelance writer based in New York City.

 

Photo: Kent Greenfield at the main entrance to the law school. By Gary Wayne Gilbert

 

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