September 28, 2005

Faculty Comments On Solomon Brief

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Cornell announced last Wednesday that it had joined six other institutions in filing an amicus curiae brief on the Solomon Amendment Supreme Court case, scheduled for hearing on Dec. 6.

The 30-page “friend of the court” brief puts forth four main reasons to uphold the decision by the Third Circuit Court of Appeals, which ruled last November that the Solomon legislation violates First Amendment principles. The legislation states that schools must grant military recruiters equal access to facilities and students although their “don’t ask, don’t tell” policy does not meet institutional non-discrimination policies. Schools that do not comply risk losing all of their federal funding.

Supreme Court justices will consider the arguments in this and other briefs, as well as oral arguments from the government and from FAIR, the body of 35 law schools and faculties bringing about the suit, to decide on the constitutionality of the amendment.

According to Prof. Gary Simson, law, Yale University was the driving force behind this brief. In mid-August, its lawyers contacted Cornell about filing a joint amicus curiae brief with Yale and other schools in support of FAIR.

University Counsel and a law faculty committee picked by Stewart Schwab, the Allan J. Tessler Dean of the law school, reviewed a draft version sent by Yale and agreed that the brief would be a good one for Cornell to join after some revisions and additions were made.

Simson, who chairs the faculty committee, said Schwab had tasked its members with investigating possible responses to the Solomon Amendment. Before learning of Cornell’s intention to file a brief, the committee had already decided that law professors should, at least, sign onto a brief as individuals.

As early as June, however, Cornell had made overtures to other universities about the possibility of a brief. Simson said that it did not encounter much interest at the time.

Cornell eventually filed the institutional brief with Yale and several other schools. In addition, 26 law professors at Cornell individually signed another brief by the National Association for Law Placement, and student groups Lambda and the Military Recruiting Task Force signed a third brief.

Prof. Trevor Morrison, law, was a member of the faculty committee who worked with University Counsel and the law firm writing the brief.

“We spoke to the lawyers as they drafted the brief [and] communicated to them what it was we hoped to see in the brief – The lawyers had conference calls with various university counsels,” he said.

According to Morrison, Cornell’s brief responds to a specific argument made by the solicitor general that there was a large difference between a federal law literally prohibiting universities from excluding military recruiters and a law allowing universities to exclude these recruiters at the risk of losing funding.

“The government … incorrectly presumes that universities that do not wish to comply with funding conditions may simply decline federal assistance. In fact, rejection of federal funds is not a real choice for modern research universities,” the brief asserts.

Cornell, like numerous other institutions, is heavily dependent on government money. In the fiscal year 2004, federal contracts and grants contributed $400 million to the University, according to Joanne DeStefano, vice president for financial affairs and University controller.

Morison said that the arguments made in amicus curiae briefs can be important because they tell the court about relevant facts it might not otherwise know about. He also added that this particular brief can carry additional weight “simply just because of who’s filing it – [a] collection of the most visible and well-known and best universities in the country. [It] sends a fairly powerful message by itself.”

Simson said that the outcome of the upcoming case is difficult to predict because “historically, the Supreme Court has given a great deal of deference to any decision by the military, even when constitutional issues are involved. If this weren’t the military, I would be confident that FAIR would win.”

He continued, “I suspect the way that Justice [Anthony] Kennedy votes will be determinative; I think he’s the one that could go either way most easily. If [Kennedy] focuses on the military aspect, I think FAIR is going to lose. If he focuses on it as a gay rights case, I think FAIR is going to win.”

Currently, Cornell issues a statement affirming the University’s non-discrimination policy when it advertises military recruiting visits. “The military discriminates on the basis of sexual orientation, which is not permitted by Cornell Law School’s nondiscrimination policy and the Association of American Law Schools’ bylaws. The Law School permits the military to interview on campus because of the loss of financial aid funds that would otherwise be imposed under the Solomon Amendment,” the statement reads.

Should FAIR lose in the upcoming trial, student organizations plan to target the military’s policy of “don’t ask, don’t tell,” said Ariel Harman law ’07.

Harman, who is president of the Cornell chapter of the National Lawyers Guild and co-chair of the Military Recruiting Task Force, added that she hopes the University will aid students in organizing a panel on the military’s controversial policy.

Archived article by Xiaowei Cathy Tang
Sun Senior Editor