Candidates, media
miss point about anti-gay bias
BY BRETT GILBERT AND
JONATHAN EZOR, from the Web, January 28, 2008
In a condensed primary season like
this one, when every day brings a new poll or voting results, it's hard to focus
on policy nuance. This is all the more true when issues don't garner the
attention they should from the outset.
At the MSNBC Democratic presidential debate in Las Vegas earlier this month,
moderator Tim Russert asked Sens. Hillary Rodham Clinton and Barack Obama and
former Sen. John Edwards whether they would "vigorously enforce" the law that
requires colleges and universities to allow military recruiters or ROTC on their
campuses, or risk losing federal funding. All three candidates quickly
stated that they would enforce this law, because of their support for the
military.
Unfortunately, while support for military personnel and national service is
laudable, the candidates, Russert and the media in their post-debate analyses
missed a real opportunity to focus on the reason why this law -- particularly
the recruiting component -- has been so controversial and opposed by many within
the higher education community.
It has nothing to do with support for the armed services in general.
Rather, it is a reaction against the ongoing discrimination against gays and
lesbians who wish to serve their country without having to lie about their
sexual orientation.
The law in question, called the Solomon Amendment, was first passed in 1995
during the Clinton administration and has been toughened in the years since.
Originally, Congress focused only on grants to universities from the Department
of Defense. With the current form of the amendment, though, Congress has
denied grants and contracts not only from the Department of Defense, but also
from the Department of Education and certain other departments and agencies to
any college or institution that refuses access to ROTC or military recruiters,
or even refuses to give recruiters detailed personal information about eligible
students.
For most colleges and universities, refusing federal funds is not an option, so
they are forced to comply with this law.
For many within academia, the Solomon Amendment, which mandates active support
for military recruiting, is akin to encouraging discrimination against the gay
and lesbian students who are members of the campus community, who are prohibited
from honorably serving their country's military due to their sexual orientation.
Most schools wouldn't welcome other discriminatory organizations' recruiting
efforts. Imagine a modern law school advertising job opportunities for a law
firm that expressly did not hire Jews or African Americans. Because of the
Solomon Amendment, though, universities are forced to provide space and student
information for a school-supported activity from which some of their students
are shut out. These requirements go against principles of freedom of
opinion and equal opportunity that are supposed to be the keystones of American
education.
A group of law schools and faculty called FAIR -- Forum for Academic and
Institutional Rights -- challenged this law as being an unconstitutional
violation of the academic community's First Amendment right to free speech.
In March 2006, however, the U.S. Supreme Court unanimously rejected this
argument, on the grounds that schools, even while providing access to
recruiters, were free to state their disapproval of the U.S. military's
discriminatory policies, and that sufficed for free speech.
In reality, though, any statement of protest loses its power when it must be
accompanied by unfettered access to facilities, students and information for
those against whom one is protesting. This isn't like playing golf at a
country club that won't allow women members. This is akin to providing
land, caddies and potential member information to that same club, while claiming
to be against the discriminatory policies. It sounds hypocritical, and it
feels that way, too.
It is highly unlikely that the Democratic candidates at the Nevada debate meant
to express support for discrimination against gays and lesbians or to oppose
free speech. Nevertheless, all three of them essentially did so by
pledging to enforce a law that denies colleges and universities real
opportunities to express their opinions about the military's recruiting policies
-- even while many retired generals and admirals, including Gen. John
Shalikashvili, the former chairman of the Joint Chiefs of Staff, publicly
support an end to the "Don't Ask, Don't Tell" policy and ban on gay servicemen
and women.
Two weeks and two state Democratic primaries have passed since that debate.
We still, though, hope that the candidates will take a moment to reconsider
their answers. Perhaps they'll even join in the public call for true equal
opportunity within our country's armed forces, and truly free speech on our
campuses.
Brett Gilbert is assistant dean for career services and
Jonathan I. Ezor is assistant professor of law and technology at Touro College
Jacob D. Fuchsberg Law Center.
|
