WASHINGTON – A wary Supreme Court was asked to decide several top law schools' claim that the government was violating their First Amendment rights by requiring them to assist military recruiters on campus.
At issue was whether the government may pull funding from universities if their law schools do not host Judge Advocate General (JAG) Corps recruiters on campus. The universities oppose the military's "don't ask, don't tell" policy, which requires gay soldiers to stay in the closet if they want to stay in the Armed Forces.
An attorney arguing on behalf of the law schools told the justices that requiring schools to allow recruiters on campus when the military does not comply with their non-discrimination policies is an imposition on their free speech rights.
"Congress wants to squelch even the most symbolic elements of schools' resistance to disseminating the military's message," argued attorney Joshua Rosenkranz.
The latest version of the law in dispute, called the Solomon Amendment after the late New York Rep. Gerald Solomon, permits the government to pull federal funds from entire universities even if just one "sub-element" of them, such as their law schools, prohibits or prevents military recruitment on campus "in a manner that is at least equal in quality and scope" to the access afforded any other employer.
The government argued that it was not forcing the law schools' hand by giving them an ultimatum.
"They're free to decline federal funds altogether," said Solicitor General Paul Clement.
Congress originally passed the law in 1996. In response, many law schools sought other ways to grant military recruiters access, while making it clear they did not condone the military's ban on openly gay personnel. Yale Law School, for example, allowed military recruiters to use a room on campus to interview students, but did not actively assist in arranging interviews or posting notices.
But after the Sept. 11, 2001, terror attacks on the United States, the Defense Department added the "equal in quality and scope" clause to its policy, which Congress codified in 2004. Protesting law schools filed suit, and in November 2004 the 3rd Circuit Court of Appeals enjoined enforcement of the law because it "[impeded] law schools' rights of expressive association and [compelled] them to assist in the expressive act of recruiting."
The government appealed, arguing, in Clement's words, that it was not telling the schools what kind of access the military should have, only that it should have as much as any other employer.
"[The Solomon Amendment] allows the military a fair shot at the best and the brightest," Clement said.
Supporters of the law schools view the "don't ask, don't tell" protest as one more step in the civil rights movement. Most top law schools in the 1970s barred employers that discriminated against women and blacks, and consequently many law firms were forced to institute equal-opportunity policies.
The justices seemed dubious that Tuesday's case was one of equal treatment. Clement conceded that the military's claim rested on the assumption that the military was bound by different rules than other employers. Most law schools require recruiters to abide by equal-opportunity hiring practices; the military, which is bound by "don't ask, don't tell," has never argued that it is in compliance with those anti-discrimination policies.
"The statute demands more than giving the same access," said Justice Antonin Scalia.
Many of the justices were more concerned with whether the First Amendment claims were legitimate, and did not seem satisfied that the law schools' rights were being violated when they were legally free to deny active assistance to military recruiters.
"It doesn't insist that you do anything. It says that if you want our money, you have to let our recruiters on campus," Chief Justice John Roberts said.
Rosenkranz insisted that recruiting is an "expressive" act of speech, and that by threatening schools with denial of funds, they were being forced to take on speech with which they disagreed.
“The law schools are disseminating a message that they believe it is immoral to abet discrimination ...,” Rosenkranz began.
An impatient Justice Sandra Day O'Connor interrupted the attorney, reminding him that "the government takes the position that the law school is entirely free to convey its message to everyone who comes. So how is the message affected in that environment?"
She added that the law school can tell "every student who enters the room” that they find the policy immoral.
Rosenkranz replied that when the students enter the room they are hearing dueling ideas. "The answer of the students is, 'We don’t believe you. We read your message as being there are two tiers ...,'" he said.
"The reason they don’t believe you," Roberts said, cutting the attorney off, "is because you’re willing to take the money. What you’re saying is, 'This is a message we believe in strongly, but we don’t believe in it to the tune of $100 million.'"
Scalia also pointed out that institutions have in the past been forced to include unpopular viewpoints without legitimate First Amendment claims.
"Nobody thinks the law school is speaking through those employers that come onto its campus for recruitment. Everybody knows those are the employers. Nobody thinks the law school believes everything the employers are doing or saying," Roberts said.
While the justices will probably not address the merits of "don't ask, don't tell," the heated nature of that debate could be seen outside the courthouse, where protesters waved signs containing derogatory language to describe gays, alongside others sporting the rainbow logo of the gay-rights movement.
While Supreme Court nominee Samuel Alito recused himself from the dispute when it reached the 3rd Circuit Court on which he sits, he may be asked to provide a tie-breaking vote if he is confirmed and the case needs to be reheard.