BC Law’s Kent Greenfield on Kavanaugh, Keeping Things FAIR

kent greenfield


career of fighting for human rights, standing up for unheard voices, and training the next generation to uphold the principles of the United States, started, like most good things, with food.

In the small town of Princeton, Ky., a Baptist minister, a teacher, and their children sat down for dinner and engaged in lively political debate almost every night. Sitting around the table, exchanging stories, and absorbing each other’s opinions was like bread and butter to the Greenfields.

“In a way, the learning how to persuade became a familial obligation,” said Kent Greenfield, a Boston College Law professor. “When you sat down at dinner, you had to make some point about something that was happening in the news. That was how it got internalized to me.”

Perhaps it was the influence of these dining room table talks, or maybe it was the multi-decade law career that followed, but when Greenfield heard about the letter protesting then-Supreme Court nominee Kavanaugh that law professors across the country were signing, he knew he had to jump on the opportunity to have his opinion heard.

He sent it to his fellow colleagues and he and 24 other BC Law professors signed it. In the end, it didn’t make a difference, Greenfield noted. But what was important to him was the scar that he hopes will be left on Kavanaugh’s reputation.

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“First of all, you’ve got to show your colors when it’s important,” he said. “It gives other people the courage to speak out when you speak out. But also, I think it’s important to flex your muscles … your activism muscles.”

Although he’s been outspoken since he was young, Greenfield hasn’t always had such a passion for law. Influenced by his dad’s work as a minister and his mom’s career in teaching, Greenfield was surrounded by public speaking and political banter. In school, he was a self-described mediocre athlete and musician.

He distinguished himself through youth government programs, such as Model United Nations, or as he described it, “All the things that, you know, little nerd boys do.”

After going to a small-town high school, Greenfield wanted to get a different experience from college. Without even visiting, he applied and was accepted to Brown University. The culture at Brown inspires many of its students to join forces for a variety of causes, just by nature, he said. Greenfield was no exception. He worked on causes like financial aid protests and was active in the South African divestment movement. He strived to not lose the momentum he had found in his small Kentucky high school.

After Brown, Greenfield took a five-year gap before he decided to go to graduate school. He traveled west to California and was unemployed for a while.

“I thought I deserved to be hired right away,” he said, chuckling. “But nobody else knew I deserved to be hired right away!”

Greenfield started working as a secretary for Levi Strauss, a popular American jeans company, eventually getting promoted to the community affairs department. While there, he worked on the company’s corporate social responsibility initiatives and responsibilities, which gave him the opportunity to express his political views within a corporate setting. After a few years at Levi Strauss, Greenfield decided he hadn’t seen enough of the world.

“So, I sold all my stuff and bought a backpack. And I just flew,” he said.

He flew to Peru and traveled for nine months before running out of money.

After Peru, Greenfield traveled to Ecuador and Brazil. He said the year he spent traveling was one of the best of his life. In a time where there were no internet cafes or cell phones, his contact with his world back home was limited to monthly phone calls with his parents. Once he ran out of money, Greenfield returned home and decided to attend graduate school to integrate himself back into mainstream existence.

Initially, Greenfield wanted to be a teacher, but as a result of scholarship opportunities, law school ended up being less expensive. As he describes it, he pretty much backed into law rather than ran into it.

Greenfield wound up attending the University of Chicago for law school. While Brown has a reputation for being more free-spirited, UChicago is known for being more economically oriented. Because he had studied economics at Brown, Greenfield felt comfortable with the economic jargon he heard on campus.

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He wasn’t as comfortable with the more politically conservative tone that existed in the classrooms—in this sense, the environment at UChicago was quite different than at Brown, according to Greenfield—but overall, he found it to be a welcome counterpoint. Greenfield quickly came to love law school, because it allowed him to think on a variety of levels.

“You’ve got to know text and theory,” he said. “Your ideas of justice and political theory come in. You’ve got to put everything in political context. So, you could exercise all these muscles that you don’t get to exercise in other fields of study.”

When Greenfield left UChicago, he practiced at a law firm in Washington D.C. Perhaps it was the lack of authority junior lawyers have at a firm, but Greenfield disliked practicing and found that the highlight of his day was when he would arrive to work an hour early to write law review articles. After a year, Greenfield moved on to clerking. His first clerkship was in Boston, with a judge named Levin Campbell, in the intermediate appellate court system. He describes his two years clerking as an enlightening experience.

“When I thought an opinion was done, Judge Campbell thought an opinion was just beginning,” he said. “I learned a lot from him about how important it was to not let something out of the door until it was completely right.”

Greenfield went on to clerk for Supreme Court Justice David Souter, his “personal and professional hero,” helping the justice with every part of his job, from preparing briefs to making decisions about execution cases in the early hours of the morning. The year Greenfield clerked for Souter, the side he ruled on lost more cases than it won.

“Those were tough losses to take, because we cared a lot about those cases,” Greenfield said. “When we lost cases about affirmative action, the power of congress, religious freedom, gerrymandering … you always feel like you’re losing on behalf of the people you care a lot about.”

Greenfield admired Souter’s work ethic, and his devotion to never cutting corners. Thinking back to when execution cases would come in, Greenfield explained that the justices would vote in real time. The clerks knew exactly how the other justices were voting because they were the ones receiving and delivering news between chambers about the decisions. Greenfield remembered that no matter what, Souter did not want to know how his colleagues voted, even if it was eight votes for a “stay of execution,” for example. Greenfield admired the intellectual independence he saw in Souter.

After three years of practicing and clerking, Greenfield found himself back at law school—this time as faculty at BC, where he has made a lasting impression on the intellectual and professional development of the next generation of lawyers.

“He cares about his students and remembers the smallest things about what we say in class, or what we say in office hours,” said Stephanie Johnson, a current student of Greenfield’s and BC Law ’19. “Since we talk about such sensitive topics, especially when it comes to people’s rights, he has a unique way of allowing everyone to share their opinion while also ensuring he’s creating a space where all students feel safe and comfortable.”

It was during his first six years that he, along with professors, lawyers, and other collaborators, created FAIR: the Forum for Academic and Institutional Rights–to fight for law schools’ right to ban ROTC recruiters on campus.

In the ’90s, Congress passed a statute that required education institutions to allow military recruiters on campus. Law schools, however, had banned military recruiters for a while. BC was a leader in this movement, because of the inclusion of sexual orientation in its anti-discriminatory policies. In 1994, after the “Don’t Ask Don’t Tell” policy was passed, BC thought it was inconsistent with its policies, or its obligations to their students, to allow an anti-LGBTQ+ institution to recruit on campus.

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After Sept. 11, 2001, the federal administration cracked down and stated that any law school that excluded recruiters would have federal funds taken away from the the entire university–not just the law school. Passed in February 2005, the Solomon Amendment caused almost every law school in the country to cave in, according to Greenfield.

But not BC. A group of outraged students came to Greenfield and wondered if there was a constitutional claim to be made against the Solomon Amendment. While Greenfield was initially skeptical, he soon became convinced they had a case against the government.

“We thought we a had a Coerce Speech claim,” he explained, leaning forward in his chair. “When the government is forcing their way on a campus, it’s like they’re forcing you to say something you don’t want to say. Forced speech, forced association.”

After meeting with a lawyer in New York who worked the case pro-bono, Greenfield and his students were ready to sue the Pentagon. There was only one problem.

“No law school wanted to be named the plaintiff,” Greenfield said.

The untimely invasion in Iraq made suing on behalf of gay students an unpopular cause. But Greenfield quickly figured out a workaround. FAIR was the named plaintiff, and law schools could join the association. In the end, about three dozen law schools joined FAIR. Initially, they lost in the district courts, but they won in the appellate courts. The government petitioned for another hearing and succeeded in getting the case taken to the Supreme Court. In March 2006, there were only eight justices.

The court ruled unanimously against FAIR.

“In a way, it turned out poorly,” Greenfield said slowly, lacing his hands together. “But I give myself solace in thinking that we raised the profile of LGBTQ rights, and also made it clear to our own students that we weren’t just going to sit around and take discrimination against them and not fight back.”

Despite the outcome of the trial, Greenfield’s efforts have had a lasting impact. Lisa Hurlbutt, who was a student of Greenfield’s when FAIR sued the Pentagon, recalled how his involvement in the protest affected her. At the time, she had just come out as lesbian, and she was astounded that a professor at BC wanted to stand up for her rights.

“This was years ago, but I remember it so vividly,” she said. “A professor being an ally blew my mind. I almost started crying. It was my first lesson in allies and how important it is to be an ally. It meant so much to me. He was so committed. He cares about civil rights, he cares about his students … . To have him stand up in such a big way was incredible.”

In discussing the backlash he received as a result of forming FAIR, Greenfield merely shrugged.

“I’m a straight white male, cisgender individual, living in a society where everything is geared for my advantage,” he said. “So, yeah, I got some hateful emails once in a while, but it wasn’t that big of a deal.”

Years later, Greenfield found himself once again speaking truth to power during the Kavanaugh hearings. As he described it, the Supreme Court should be the grown-up in the room, checking the other branches when their bickering gets out of hand.

But Greenfield fears that the Kavanaugh nomination indicates that the court is becoming more political. Increasingly, there has been clear split forming in the court. As it stands, there are four justices on the left, all nominated by a Democrat, and five on the right, all nominated by a Republican. As a result, Greenfield fears the court is beginning to look more like a super legislature than a group of intellectuals who care more about investigating constitutional norms than about politics.

Greenfield thinks America is at a pivotal point in its history. Speaking up is incredibly important, he said, and we’re at a place where if you don’t speak up, you risk the future of the country.

“If you stay silent, over time, it’s easier and easier to stay silent,” he said. “Or you speak up. It gets easier and easier to speak.”

Photo Courtesy of Kent Greenfield

Maeve Reilly

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