Faculty at the law school adopted a formal statement on the controversial Solomon Amendment last Wednesday by calling the legislation, which denies federal funding to schools that restrict military recruiting, “unconstitutional.”
“By effectively preventing the Law School from implementing its non-discrimination policy against the military, the Solomon Amendment endorses and perpetuates a form of discrimination that is not only deeply invidious but unconstitutional as well,” law professors stated in their resolution.
The idea for a resolution surfaced in February during a panel discussion on the amendment, where students asked Stewart Schwab, the Allan J. Tessler Dean of the law school, to push for a faculty statement reaffirming the school’s non-discrimination policy.
Although Schwab did not promise then, he and other faculty members discussed the resolution at the faculty meeting two days later.
The faculty then wrote and revised the resolution in conjunction with the Military Recruiting Task Force, a student committee on the Solomon Amendment.
According to Jessica Polansky law ’05, the Solomon Amendment is fundamentally at odds with the University’s non-discrimination policies and in particular with the policies of the law school, which explicitly prohibit recruiters from discriminating on the basis of sexual orientation.
Although most students and administrators share Polansky’s views on the amendment, much dispute remains about the law school and University’s best course.
At the February panel, many students expressed frustration with what they considered a lack of decisive action by the law school and University administration.
Polansky, who presided over the Cornell chapter of the National Lawyers Guild last year, embraced the resolution as a great first step and applauded some of the document’s strong language.
She added, however, that the resolution does not accomplish much in practical terms. “It’s disappointing that we’ve had to push so hard for the last two years on this issue … [and] gotten such a weak response,” she said.
Polansky said she would love to see the faculty write an amicus curiae brief, which would allow Cornell to explain the effects of the amendment without joining the lawsuit; or join FAIR, a national association of law school faculty and administrations suing the Department of Defense over the constitutionality of the amendment.
Schwab said he was “very sympathetic” to the idea of writing an amicus brief but added, however, that “it wouldn’t be prudent for the law dean or University president to commit too early.”
Because the case has not come before the Supreme Court yet, the “decision to do that is not immediately before us,” he said.
He continued that if a decision were made to write the brief, a committee of law school faculty would work with University Counsel to craft it.
Cornell did not join FAIR, Schwab said, because “the University does not really join a group whose main mission is to litigate … [we] want to control our own voice in the litigation.” Polansky said she believes the law school and University’s hesitation is in part due to a fear of “alienating donors and alumni who potentially are not very supportive of gay rights or … of the military.”
Some students had mixed feelings about the amendment itself.
Amy Philips law ’07 is co-president of Lambda Law Students Association and an active member of the LGBT community.
“I don’t like that the school is forced to do something that violates ABA [American Bar Association] rules,” she said.
She continued, however, “I think Cornell should allow whoever wants to recruit, recruit.” The school can then inform students of employer’s hiring polices and allow them to make their own choices, said Philips, adding that her opinions do not reflect Lambda’s stance. Many students expressed hopes that the momentum from the resolution will not die down.
“I’m hoping that things will keep moving forward and that Cornell keeps this issue on the radar screen,” said Jocelyn Getgen law ’07, a member of the Military Recruiting Task Force. Schwab said the controversy surrounding the amendment will be “many times more visible when the case gets before the Supreme Court.”
“I think that is the time for interested parties like Cornell University and Cornell Law to articulate their voices,” he said.
As for the future of the amendment itself, Schwab said that it is “more likely than not that [Supreme court justices] will uphold the amendment.”
“If they strike it down, Congress will come back with revised legislation,” he said.
He predicted, however, that a “few years out, the military itself will change the ‘Don’t Ask, Don’t Tell’ policy as not in its best interests.”
Archived article by Xiaowei Cathy Tang
Sun Senior Editor