Professor Kent Greenfield takes on Rumsfeld et al.
 A
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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