BC Law hosts Solomon conference

As the Supreme Court prepares to decide the constitutionality of the Solomon Amendment in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), scholars and lawyers debated the merits of the case at a conference sponsored by the Coalition for Equality at Boston College Law School.

FAIR contends that the Solomon Amendment "violates the First Amendment rights of its members by conditioning federal funds to universities on its members' support of military recruitment on campus - recruitment that blatantly excludes openly gay, lesbian, and bisexual law students."

Cosponsored by the BC Law School chapters of the American Constitution Society and the Federalist Society, this event included several forums and even a moot court. The final panel of the day took session with its focus on the limits of expressive association.

The panel's first speaker, professor Tobias Wolff of the UC Davis School of Law, started out with his assessment of the problem.

"My conclusion is that the lawsuit against the Solomon Amendment is terribly misguided as structured. When the original charge against the amendment is that it impedes the ability of an entity to communicate a message effectively, we must wonder if this is even the case at all," he said.

Wolff asserted that despite the military's discriminatory policy of "Don't Ask, Don't Tell," recruiters will not necessarily hinder a university's ability to convey messages as an expressive association. An expressive association, Wolff explained, has a twofold description. It is any community in which progressive thinking is encouraged, but where sharing these new ideas with others is paramount.

"To say that we should exclude from the law environment alternative viewpoints on the mere basis of their dissention is a shocking statement with horrible implications," he said.

Wolff pointed to this contradiction as the lawsuit's primary flaw. "Just because we don't like what the military symbolically represents with its discriminatory policies, our mere disagreement is not enough to contend that our message as a university or community is being jeopardized," he said.

Wolff then outlined the danger in drawing a parallel to the Supreme Court ruling on the Boy Scouts of America v. Dale case.

Originally, the New Jersey superior court sided with James Dale, an openly gay scoutmaster whose membership was revoked because of his sexual orientation. The Supreme Court, however, overturned this ruling on the grounds that the Boy Scouts' First Amendment rights of expressive association were being violated.

Wolff warned that this decision should not apply to all cases. "In my view, Dale is a precedent that should be resisted at all costs," he said.

Mark Tushnet, professor of law at Georgetown University Law Center, reinforced this point.

"There's a jurisprudence, implicit, that doesn't allow us to use Dale as a paradigm. I want to emphasize my concern with the consequences of making this error," he said.

Professor Diane Mazur of the University of Florida Levin College of Law took the floor to address the potential implications of the Supreme Court ruling in favor of FAIR. Pointing to the growing rift between the military and civilians, Mazur said that the ensuing disengagement between the two, as a result of FAIR, will only weaken any chance of mutual cooperation.

"Law schools place the military outside of its community. This method of avoiding discussion, ignoring the government's accountability, defends the very principle we are fighting against - Don't Ask, Don't Tell," she said.

Mazur continued to describe how law schools are currently responding to this accusation. "They say that they cannot and will not assist the military in propagating their message, which happens to be a discriminatory policy dissenting from the morals of the university. But this is merely their logic to rationalize the separation between themselves and the military," she said.

Summing up, Mazur explained the need for law schools to take an active role in dealing with issues regarding the military.

"The military should not be exempted from constitutional review, especially in a scholarly environment such as this. Law schools need to actively engage the military in legal scholarship and bring the issues back into the community. Shunning the situation is the most powerful form of expressiveness there is, but also the most dangerous," she said.

The final panelist, professor Kathleen Clark from Washington University Law School, redirected the discussion to address the underlying civil rights issues at hand. With 79 percent of the public now supporting the inclusion of openly gay and lesbian service members, Clark stated, public opinion has drastically changed over the years.

Clark then explained how without political work, the legislation will go nowhere.

"We have a practical option and responsibility to take political action and end the discrimination and essentially the military's ban on gay, lesbian, and bisexual students ... I urge you to take the energy I've seen displayed here today and channel it. I implore you to exercise your rights as citizens and challenge this issue in your community today," she said.

Before turning the floor over to questions from the audience, Clark described possible ways of getting involved. With a demonstration scheduled for May 15 and 16 in Washington, D.C., she urged law students to assist in the effort towards eliminating the military's discriminatory policy.

She also advocated taking action on the local level as well. Notifying city councils and state legislatures, she said, can achieve nothing but good results.

Moving on, the panel opened up the forum to discussion. One law student asked whether the Supreme Court could possibly stand on the issue and dodge any constitutional problems. To that, Mazur replied with, "Standing does not provide an innocuous way of dealing with this issue."