March 16, 2006 • Volume 14 Number 13
Last week's US Supreme Court decision upholding the Solomon Amendment represents a crossroads for Prof. Kent Greenfield (Law) and the group he founded, the Forum for Academic and Institutional Rights (FAIR).
Greenfield was the driving force behind FAIR, a coalition of law schools, faculty and other individuals opposed to the Solomon Amendment, which authorized the federal government to withhold funds from colleges that ban military recruiters. Many law schools contested the law on the grounds that the military's "don't ask-don't tell" policy on gays violates the institutions' non-discrimination policies.
[Boston College has abided by the Solomon Amendment since its inception in 1994.]
But the Supreme Court's 8-0 ruling on Rumsfeld vs. FAIR in favor of Solomon last week left Greenfield and FAIR to ponder their direction, and to gauge the impact of the decision, long and short-term.
"When you lose 8-0, it's pretty clear that you have to take a step back, reflect, and then move on," said Greenfield. "This particular avenue is closed, obviously, but there are others to pursue. The underlying issues here are discrimination, and academic freedom, and those are things FAIR - in whatever form it might take - will continue to address."
Although disappointed in the outcome, Greenfield points to what he says are "silver linings" in the Supreme Court ruling. The justices, while affirming Solomon's constitutionality, said schools and faculty members were free to declare their opposition to the military's policy on gays.
"The court made it clear that the Solomon Amendment does not counter our First Amendment right to protest," he said. "That is a victory, even though perhaps a bittersweet one, because it disavows the idea that colleges be directly commanded to aid in recruiting. It's important that colleges, especially Jesuit and Catholic universities, be able to occupy a space distinct from our government - and even to be able to express views that are different from our government.
"I think that as a result we'll see more protests on college campuses concerning 'don't ask-don't tell.'"
Greenfield said the court also forestalled a potential dilemma that could have created a whole other legal and social controversy. "There was a concern that an institution or employer might say, 'OK, if a college can use the First Amendment to oppose a federal policy on the military, I'm going to use it to ban African-Americans because I disagree with the federal policy on non-discrimination.'
"But the ruling stated that no one has a First Amendment right to oppose anti-discrimination laws."
Ironically, Greenfield says, social and economic trends worldwide and in the US may render Rumsfeld vs. FAIR as a footnote rather than a landmark case in American legal history.
"It's become increasingly clear that age-old stereotypes have been the reason for excluding homosexuals from military service. But in many other countries, it's common to have soldiers who are openly gay - and they are often fighting beside our own soldiers in the war on terror.
"Ultimately, it will come down to a choice between a focus on sexual orientation or on simply recruiting people who have the skills and desire to serve. And the US military will decide that sexual orientation is neither here nor there, as has been the case in other sectors of American society."
-Sean Smith •