Last week, Prof. Kent Greenfield from Boston College Law School spoke at the Cornell University Law School about his organization, Forum for Academic and Institutional Rights, and its current litigation against the United States Department of Defense for the latter’s refusal to abide by law schools’ on-campus recruitment regulations.
Greenfield founded FAIR, an organization that is currently suing the Defense Department over the issue with the backing of fifteen law schools. The premise of FAIR’s lawsuit relies partly on the First Amendment and claims that the department is in violation of the Amendment.
The FAIR lawsuit specifically challenges a piece of legislation known as the Solomon Amendment, which requires that law schools allow the Defense Department to recruit on campus, despite its “don’t ask, don’t tell, don’t pursue” policy, which prevents the department from hiring openly gay individuals. As of right now, the department does not have to sign law schools’ non-discrimination policies, which is a prerequisite for all other on-campus recruiters.
The Solomon Amendment stipulates that if a law school does not allow the military sufficient access to their facilities, all government funding is withdrawn from its parent university. For schools like Cornell, this would mean several million dollars in lost funds annually.
“It is inconsistent with the First Amendment to condition government funds on the recipient’s agreement with the government,” Greenfield explained. “Just as you can’t give driver’s licenses only to people who agree to vote Republican or Democrat, you can’t condition [the receipt of] government benefits on your relinquishment of constitutional rights.”
FAIR is challenging the Solomon Amendment on the basis that it does not give law schools the freedom to make their own rules and that it uses the power of the purse to force schools into compliance. Furthermore, Greenfield found himself and many of his students frustrated with the Solomon Amendment’s promotion of the “don’t ask, don’t tell, don’t pursue” policy.
“It’s as if the military is saying ‘We want you but only if you’re straight. Or, if you’re gay and willing to shut up about it,'” Greenfield said.
The Law School is planning further activities to educate faculty and students about the lawsuit, and administrators are currently considering the possibility of joining FAIR.
In making such a decision, the Law School administration must consult with the University Council, the President’s Office, and then with the Law School faculty.
“Can the law school act unilaterally or does it need authorization from the University? I’m seeking to get those kinds of answers from the appropriate people at the University,” said Cornell Law School Interim Dean John A. Silicano ’75. “If it needs some sort of authorization, what’s the process for that, and will it be forthcoming? If [the Law School] does have the authorization to act unilaterally, what are the appropriate internal processes to determine whether we can join FAIR?”
Furthermore, another mitigating factor that prevents the Law School from taking immediate action is the ongoing search for a permanent dean.
“There are a number of issues that really represent fundamental choices that the school is going to make in terms of direction that have been appropriately left for after the resolution of the dean search,” Siliciano explained.
Dean Siliciano attended Prof. Greenfield’s lecture and said that it provided him with further insight on the situation at hand.
“I found it helpful because it revealed aspects of the situation that weren’t available to me before,” Siliciano said.
One issue that was clarified was that joining FAIR would not be equivalent to joining the lawsuit.
“[FAIR is] simply looking for law schools to join the organization; they’re not looking for law schools to join as named plaintiffs,” Silicano said.
Cornell Law Prof. Steven H. Shiffrin, a renowned First Amendment scholar, was among the faculty members who also attended the lecture.
“If the issue came before the Cornell faculty, I would be hopeful that the faculty would join [FAIR],” Shiffrin said.
As an expert in the First Amendment, Shiffrin also commented on the legitimacy of the claims that the lawsuit makes.
“I think that it’s a good case on the merits,” Shiffrin said. “It is very clear that you can’t condition benefits upon the abandonment of constitutional rights. Imagine this: you can speak in favor of the Republican Party, but if you do, we’ll take away your Social Security benefits, an obvious violation of the First Amendment.”
Student organizations within the Law School have been advancing this issue for several months. The Cornell Law School chapter of the National Lawyers Guild, which works to promote progressive changes in law school policies, has joined forces with Lambda, the gay and lesbian student organization at Cornell Law, in order to convince students, faculty and administrators to take action regarding this issue.
“We decided to join [together with Lambda] because we think this is an incredibly important issue from a civil rights perspective, the fact that what the military is doing is wrong, and also the fact that this really infringes on academic institutions,” said Jessica Polansky law, president of the Cornell Law chapter of the NLG. “We’re certainly looking for the administration to go forward with FAIR.”
Currently, the NLG and Lambda are meeting with administrators and plan to confront faculty members directly about the issue.
“It’s time to start banging down doors,” said Judy Amorosa law, social chair for Lambda.
Still, members of Lambda and the NLG are encouraged that some progress has already been made in educating the faculty and students about this issue.
“We feel like the administration is starting to make some progress in addressing the issue of military recruiting on campus,” said Matt Faiella law, president of Lambda. “Dean Siliciano wrote a letter to the law school community giving his view on the fact that this conflicts with his idea of a just society. The rest of the law school community now knows that this is an important issue. Now we do have some faculty members who are interested in the issue, and maybe they can bring it to a faculty meeting and talk about it intelligently.”
NLG and Lambda members are hopeful that the Law School will consider joining FAIR.
“What’s so encouraging about this is that the Law School doesn’t necessarily have to take this huge stance that puts them out on a limb. [Joining FAIR would mean] saying that they’re joining an association, and part of what this association is doing is suing the government,” Polansky said.
Archived article by Andrew Beckwith