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Candidates, media miss point about anti-gay bias

BY BRETT GILBERT AND JONATHAN EZOR |Brett Gilbert, left, 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.

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.

Source: newsday.com

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