Now that a federal appeals court has ruled that the Department of Defense cannot withhold funds from colleges and universities that bar military recruiters on law school campuses, members of the Cornell community have begun to question the impact the ruling will have on campus.
“As far as I can tell, Cornell no longer has to allow military recruiting on campus as long as this injunction is in place,” said Matthew W. Dos Santos law ’06, co-president of Cornell Law School’s Lambda Law Students Association.
Recruitment is an issue on university campuses because of the military’s “don’t ask, don’t tell” policy, which is in direct conflict with existent non-discrimination clauses, including Cornell’s: “open doors, open hearts, open minds.”
“Cornell now can implement its non-discrimination policy as it was mean to be implemented,” Santos said.
He added that there was some question as to whether the decision of the court, which is located in Philadelphia and has jurisdiction over Pennsylvania, Delaware and New Jersey, would apply to Cornell. The “national scope of the plaintiffs,” Santos said, means it would “be weird if it wasn’t included.”
Judge Thomas L. Ambro wrote for the majority that in general, institutions do not have to associate with groups whose policies they oppose. Ironically, it was the earlier Supreme Court ruling that the Boy Scouts of America could bar homosexuals from becoming scouts or troop leaders, which provided the base for Ambro’s decision.
“Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath,” Ambro wrote, “the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice.”
Judge Ruggero John Aldisert wrote the dissenting opinion, raising concern that barring recruiters from campus would prevent the military from being able to compete with major law firms.
“They obviously do not desire that our men and women in the armed services, all members of a closed society, obtain optimum justice in military courts with the best-trained lawyers and judges,” Aldisert said.
The Justice Department, which is representing the federal government in the case, said on Monday that they were reviewing their appeal options for the case.
“The United States continues to believe that the Solomon Amendment is constitutional,” the agency said in a statement.
Santos pointed out that what the court handed down is a preliminary injunction, meaning that when the government appeals the case, the court may put the decision on hold.
“Until they issue a permanent injunction, this may not have an effect,” Santos said.
If the court does not overturn the decision, the case would go to the Supreme Court.
“It’s not the law of the land until the Supreme Court says it is,” said Judy Amorosa law ’05, co-president of Lambda Law.
She also pointed out that the issue is “largely symbolic” for Cornell Law and the military because the recruiters “are not really getting lawyers here anyway.” If the ruling were somehow applied to Reserve Officer Training Corps programs, however, it would be “a totally different story. ROTC is where they draw their officers from.”
Last year, Lambda Law and Cornell’s chapter of the National Lawyer’s Guild named as amici curae in the case. According to Amorosa, they encouraged the University to join the Forum for Academic and Institutional Rights, who filed the case, either as a University, a law school or as the law faculty, but their pleas were unsuccessful.
“They did not think this suit would be successful,” she said.
Student leaders at Cornell are now saying that the University has what Santos called an “opportunity to react immediately.”
Amorosa said it would be “very surprising” if Cornell kicked all military recruiters off campus immediately.
“We’ll have to make an effort,” she said.
“I hope that Cornell will take this ruling to show that we can and should stand true to what we believe in and to what our non-discrimination policy says,” said Erica Kagan ’05, president of the S.A. and Haven, Cornell’s umbrella group for LGBT student organizations.
Archived article by Freda Ready
Sun Managing Editor