Cornell University announced today (Sept. 21) that it has joined with Columbia University, New York University, Harvard University, the University of Pennsylvania, Yale University and the University of Chicago in filing a friend-of-the-court (amicus) brief in a U.S. Supreme Court case challenging the constitutionality of the Solomon Amendment.

The amendment threatens universities with the loss of millions of dollars of federal funding unless they offer military recruiters the same access to students and institutional assistance that is offered to any prospective employer -- even though the U.S. armed services do not comply with institutional policies barring employers who discriminate on the basis of sexual orientation.

The joint brief will be filed in support of the Forum for Academic and Institutional Rights (FAIR) coalition, which successfully challenged the Solomon Amendment on First Amendment grounds before the Third Circuit Court of Appeals in November 2004 (FAIR v. Rumsfeld). The federal government has appealed that decision, and the U.S. Supreme Court will hear the case Dec. 6.

The joint amicus brief focuses on the Solomon Amendment's impact on academic freedom, which the high court has long recognized as an important First Amendment right. By presenting universities with a Hobson's choice of either exempting military recruiters from anti-discrimination policies or forgoing the vast majority of their federal funding -- a practical impossibility, given that federal research funds account for over 60 percent of all research dollars at private universities -- the Solomon Amendment impermissibly interferes with their ability to impart key institutional values of nondiscrimination. The brief also assails the federal government's extremely broad assertion of its powers to attach conditions on federal funds that impinge on First Amendment rights.

"Everyone associated with Cornell University should be proud of its joining an amicus brief in Rumsfeld v. FAIR in support of FAIR's opposition to the Solomon Amendment," said Gary Simson, professor and chair of a Law School ad hoc committee on the military recruitment issue. "That amendment strikes at the heart of academic freedom. By threatening to withdraw federal funding from universities that do not treat military recruiters the same as any other recruiters, the amendment compels universities to choose between losing long-standing, essential funding and acquiescing publicly in the military's discriminatory hiring policies with regard to gays and lesbians. This is a choice that universities cannot constitutionally be forced to make."

Steve Shiffrin, Law School professor, agreed. "The government contends that it can use the threat of withdrawing funds not only to impinge on the university's nondiscrimination policy, but also to ride roughshod over academic freedom in a wide variety of circumstances," he said.

"The government demands access equal to that of other employers and maintains that national security would be damaged even if nonequal but otherwise fully adequate access were provided by universities. The [amicus] brief attacks the government's benign treatment of coercive funding withdrawals, its crabbed conception of the First Amendment and its inflated conception of national security. I am delighted that Cornell has participated in the development and filing of this important brief."

Cornell's Office of the University Counsel worked closely with a committee of Cornell Law School faculty and staff appointed by Law School Dean Stewart Schwab and with colleagues from Columbia, Yale, Penn and Harvard in developing the brief.

The full text of the brief will be available at http://www.law.cornell.edu/FAIR/cornell_brief.pdf.