February 9, 2004

Students File FAIR Brief

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In the wake of Cornell Law School’s Lambda Law Students Association and National Lawyers Guild (NLG) naming as amici curiae in a brief submitted to the Third U.S. Circuit Court of Appeals in a suit filed against the Department of Defense, various student groups are seeking an official response from the University. Lambda represents lesbian, gay, bisexual and transgender (LGBT) members of the law school community.

Amici curiae, meaning “friends of the court,” are not direct plaintiffs or defendants in a lawsuit but instead provide a perspective that helps the court to make a more informed ruling.


This amicus curiae brief supplements a lawsuit filed by the Forum for Academic and Institutional Rights (FAIR), an organization that claims that a piece of legislation known as the Solomon Amendment unfairly allows military recruiters on law school campuses, despite the military’s refusal to abide by law schools’ nondiscrimination policies. Currently, the military’s “don’t ask, don’t tell” policy prohibits openly LGBT from serving. Under recent interpretations of the Solomon Amendment, any law school that refuses to grant military recruiters full access to its students can lose all federal funding for its parent university.

One of Several

The amicus curiae brief filed by Cornell’s Lambda and NLG, along with other organizations around the nation, is only one of several amicus briefs that have been added to this case. Several law school career services professionals, who serve as intermediaries between law students and on-campus recruiters, have filed their own amicus brief. One of the career service professionals represented in the brief is Karen Comstock, assistant dean for career services at the Law School. In filing the brief, Comstock is acting only as an individual career services professional, not a Cornell administrator.

“[Career services professionals] have an interest in ensuring that this court is fully informed as to what their jobs … entail, and they have an interest in retaining the freedom to perform those jobs in accordance with the values that are central to the schools they serve,” Comstock said.

“The argument here is that … career services professionals, in facilitating recruitment, [are] facilitating speech, and providing a forum for that speech,” she added. “In this case the speech that the Defense Department is speaking is one of discrimination, and so by requiring that career services professionals are involved in helping the military recruit, we are put in a position of facilitating speech that is against the nondiscrimination policy of the law school.”

In mid-January, faculty and students at Harvard Law School filed their own amicus brief, offering their perspective on military recruiting. In Ithaca, faculty and administrators have yet to officially address the FAIR lawsuit although student government and organizations have sought to encourage Cornell’s administration to act on this issue. Both the Student Assembly and the Graduate and Professional Student Assembly passed unanimous resolutions encouraging the University administration to join FAIR.

Brian Holmes grad, head of the GPSA Finance Commission and at-large assembly representative, advocated for the passing of the resolution.

“I’m hoping that we can give the Law School and the central administration of the University the encouragement to take a stand on the issue,” Holmes said. “What I really like about the resolution that we passed is that it isn’t an attack on the military itself but strictly on the way the Department of Defense is implementing this policy, in trying to extort intolerance from law schools around the country.”

Erica Kagan ’05, vice president of finance and LGBTQ liaison for the S.A. and president of Cornell’s Direct Action to Stop Homophobia (DASH), explained why it was important for the S.A. to address this issue.

“If you really look into the Solomon Amendment, the funding could affect the entire University,” she said. “The fact that [military] recruiters are on campus doesn’t affect [undergraduates] directly, but I would feel uncomfortable if a recruiter was here, even if he or she wasn’t trying to recruit me. There are also [undergraduates] who are interested in going to law school, and therefore one day will be [directly affected by the amendment].”

In addition to being a party to the amicus brief, members of Lambda and NLG at Cornell Law have been meeting with administrators to discuss Cornell’s potential role in the FAIR lawsuit.

Matt Faiella law ’05, president of Lambda, and Jessica Polansky law ’05, president of NLG, both expressed some frustration at the lack of administrative response to this issue.

“I’m a little disappointed, because we feel that … the Law School and the University have not come forward with any concrete actions yet,” Faiella said. “There are a number of students who are starting to question the Law School’s commitment to diversity.”

Polansky agreed, saying that NLG and Lambda are not asking the University to take an extreme position in the litigation.

“It’s very understandable that in the midst of all this transition within the Law School administration, that the administration both in the Law School and the University want to defer and wait until they figure out all of the issues,” she said. “We definitely appreciate that. But we think that it makes sense for them to join FAIR regardless of the litigation, because this is an organization dedicated to academic integrity and academic freedom, regardless of the lawsuit.”

Faiella and Polansky are determined to continue to stimulate dialogue about the FAIR lawsuit among administrators until progress is made.

“First-year law students are becoming more involved in this effort, because we want to continue discussing this issue until it is fully resolved,” Faiella said.

Archived article by Andrew Beckwith