February 9, 2005

District Court: Solomon Amendment 'Unconstitutional'

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A District Court judge ruled that it is unconstitutional for the government to deny federal funding to universities that restrict on-campus military recruitment.

The decision was announced last Monday in a lawsuit filed by Yale Law School faculty members against the U.S. Department of Defense.

The major point of debate was a piece of legislation called the Solomon Amendment, which states that law schools that deny full access to military recruiters will lose all federal funding for their parent universities.

Yale Law School faculty members argued that since the military’s “don’t ask, don’t tell” policy prohibits them from hiring openly lesbian, gay, bisexual or transgender (LGBT) individuals, the military is in violation of the law school’s nondiscrimination policy. Yale’s policy requires that all campus recruiters consider applicants regardless of gender, religion, ethnicity and sexual orientation.

In light of this ruling, Yale Law School Dean Harold Hongju Koh issued a memorandum to members of the law school community stating that he is “notifying military recruiters that the Yale Law School will enforce its nondiscrimination policy during the Spring 2005 Interviewing Program without exception.”

Koh also said that the District Court judge’s ruling “brings us closer to the day when all members of our community have an equal opportunity to serve in our Nation’s armed forces.”

“I am personally very happy that for the first time since I’ve been at the law school, our non-discrimination policy was actually enforced at a recruiting event during the Spring Interview Program, which took place last Thursday. It’s a relief to many of us that we once again can depend on the policies our school has tried to institute to keep discrimination out of our community as much as possible,” said Janna Freed, co-chair of the Student/Faculty Alliance for Military Equality (SAME) at Yale Law School and a member of OutLaws, the school’s LGBT student organization.

OutLaws and SAME are two groups which have been working together on the issue of military recruitment at Yale. They have brought their own lawsuit against the Department of Defense, which is still pending a decision in District Court.

Freed added that, as a whole, her fellow students as well as faculty members have been “overwhelmingly supportive” throughout this process and that “the atmosphere right now is very positive and hopeful.”

Several other law schools and faculties have filed lawsuits regarding this issue, including one that resulted in a Circuit Court ruling last November which also declared the Solomon Amendment unconstitutional. The Department of Defense plans to appeal that case to the United States Supreme Court.

Some student organizations at Cornell Law School have been working to encourage the school’s administration to take action against the Solomon Amendment.

Lambda Law Students Association, Cornell Law’s LGBT student organization, along with the Cornell chapter of the National Lawyers Guild (NLG), a progressive organization that works to promote changes in law school policies, have been leading publicity campaigns, lobbying faculty and petitioning the administration in order to encourage the law school to take action.

“NLG and Lambda are both very excited about the favorable Yale decision in District Court,” said Jessica Myers law ’06, president of Cornell’s NLG. “We are hopeful that the district decision will be appealed in the 2nd Circuit (the one that covers New York state), creating irrefutable precedent that [the Solomon Amendment violates] a university’s First Amendment rights…allowing Cornell the opportunity to exclude military recruiters as long as ‘don’t ask, don’t tell’ is in effect.”

Students are now questioning whether the Cornell Law School will change their policy in light of this court ruling.

“We want to know how the [Office of University Counsel] is approaching …the recent decisions…as they will likely effect ROTC programs in addition to military recruiting of graduate and professional students,” said Matt Faiella law ’05, a 3L representative for Lambda, adding, “We look forward to learning more about Cornell’s response.”

While the law school has not joined any litigation regarding the Solomon Amendment, faculty and administrators have expressed their views on the issue.

“My personal view [is] that the discrimination currently mandated by Congress for military recruitment is profoundly at odds with the dictates of a just society. In my opinion, sexual orientation should have no relevance to an individual’s freedom to serve the country through military service,” said Stewart Schwab, the Allan R. Tessler Dean & Professor of Law in a statement he issued in December to the Cornell Law School community.

Archived article by ANDREW BECKWITH
Sun Senior Writer