The Solomon Amendment and the Don't Ask, Don't Tell Policy: Gays and Lesbian Lawyers in the Military

A panel discussion on government policy, sponsored by the American Constitution Society and OUTLAW, October 5, 2004

On October 15, Department of Defense recruiters visited the Law School to promote careers in the military; nearly everyone was welcome. In civilian life, the gay rights front has marched from the closet to the pulpit, but in the forces, the doors are still shut.

Protesters in the lobby of Furman Hall when Department of Defense recruiters visited the Law School.

Ten days before the arrival of the DOD, the Law School’s American Constitution Society and OUTLAW presented a panel discussion to raise awareness of the issues that would troop in alongside the military recruiters.

The four person panel consisted of Shara Frase, an associate with Heller Ehrman White & McAuliffe LLP; Geoffrey Stone, Harry Kalven, Jr. Distinguished Professor of Law at the University of Chicago Law School; Sharra Greer, Director of Law and Policy at the Service Members Legal Defense Network; and Burt Neuborne, John Norton Pomeroy Professor of Law and Director of the Brennan Center for Justice.

Greer opened the discussion by side-stepping the legalese, and explaining what it means to be gay in the military. It means living a lie. Greer described an endemically homophobic military culture that routinely turns a blind eye to beatings and verbal persecution of gay or gay-suspected service men and women.

Despite the double think of the 'Don't Ask, Don't Tell' policy fudge of the Clinton administration, in which the military supposedly took a what-we-don't-know-can't-hurt-us position; in fact, senior officers routinely goad suspected service personnel for confessions. Once admitted to, homosexuality receives instant discharge.

And you really can't tell anyone at any time. Greer described the experience of Airman Brandi Grijalva who assumed the sanctity of the confessional applied as much in the forces as it did on civvy street. He admitted his sexuality to his chaplain and received an honorable discharge.

Grijalva got off lightly. After fourteen and a half years of stellar service, someone reported that Officer Derek Sparks was gay. Despite the fact that 'Don't Ask, Don't Tell' vetoes investigation of service personnel for their sexuality, an investigation ensued and Sparks received a lower than honorable discharge. As a result, he lost all his benefits.

The visit by military recruiters to the Law School comes at the end of a long running battle between NYU and the DOD. In 1978 New York University School of Law was the first American university to deny its career services to employers that discriminated on the basis of sexuality. The veto joined previous policies that denied access to any recruiter who discriminated on the basis of race, gender, religion or disability.

According to Neuborne, NYU School of Law realized how much employers relied on the Law School’s graduates for recruits, and used the leverage to influence employer’s anti-discrimination policies. "We found we could just turn off the spigot, and it worked," he said.

In an attempt to bring the errant universities into line, the Solomon Amendment was enacted in 1995. The legislation denied DOD funding to universities that refused access to military recruiters. In 1997, Congress expanded the amendment to deny funding from the Departments of Labor, Health and Human Services, Education, and Transportation. The Law School lost $75,000 dollars in student aid but still wouldn’t let the military in.

The military, however, doesn’t take no for an answer. In 1999, the DOD reinterpreted the Solomon Amendment. Up until that point, if the Law School refused access, then the Law School lost the money. But now, if any part of NYU failed to get in line, then the whole University would be refused access to federal funds. For departments such as the medical school, whose federal funds each year amount to more than the entire Law School budget, this would be disastrous. The Law School has since had no choice but to permit access to military recruiters. In short, the DOD did what they do best, they strong-armed their way in.

Frase is part of a legal team that is leading a coalition of law schools and universities, known as FAIR (Forum for Academic and Institutional Rights), in one of four lawsuits that challenge the constitutional legitimacy of the Solomon Act. Individual universities were initially slow to join the fight, understandably wary of taking on both the DOD and Congress. The coalition was formed to allow universities to maintain anonymity while still standing up for their egalitarian principles. The initial hesitation has long been replaced by a groundswell of support and FAIR now has 25 members.

"No one wants to jump in first unless they have twenty other hands to hold onto, but what is really surprising is not the initial hesitation, but how quickly the law schools acted once FAIR gave them a means by which to challenge Solomon," she said.

Professor Stone, however, played devil's advocate. "I don't believe that any law school discussion should be a cheer-leading session," he said. According to Stone, the problem with contesting the Solomon Act as an infringement of the First Amendment, is that in this case, the issue was really one of equality, not freedom of speech.

He explained that although preventing DOD access to Law School property may infer support for certain political and social ideals, strictly speaking, there isn't actually any speech involved. Drawing a parallel example, he said that although driving over the speed limit may be an expression of your opposition to anti-speeding laws, you could hardly bring a defense against a reckless driving charge on the basis that it is an infringement of your rights under the First Amendment.

The panel agreed that they were glad he was on their side.

By Dan Bell