The nation's top law schools lost a significant legal argument on Monday when a unanimous Supreme Court ruled that the federal government could withhold funding from schools that bar military recruiters in protest of the anti-gay "don't ask, don't tell" policy.
All eight sitting justices who heard oral arguments in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) last December rejected the schools' argument that being forced to allow the recruiters on campus violated their First Amendment rights.
"Students and faculty are free to associate to voice their disapproval of the military's message," wrote Chief Justice John Roberts. "Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association."
Daniel Polsby, dean of George Mason University School of Law, said he believed the law schools were merely cloaking their "antipathy" toward the military behind the First Amendment claims.
"I thought the protest angle was pretty much of a pretext," said Polsby, who filed an amicus brief supporting the government. "Why should they protest the military? The military didn't make this policy — Congress made this policy."
"Our nation’s universities are not anti-military, they are anti-discrimination," a spokesman for New York University said. "Regrettably, today’s Supreme Court decision will ensure that this important distinction is lost."
Many law schools across the country began banning recruiters from the Judge Advocate General (JAG) Corps after the Pentagon's policy barring openly gay servicemen and servicewomen was passed by Congress during the Clinton administration. While most law schools' anti-discriminatory policies are in line with federal equal-opportunity law, the military's ban on gays was legal.
But nearly all law schools require recruiters to sign a form stating the employers they represent do not discriminate on the basis of race, gender, national origin or sexual orientation. Because of "don't ask, don't tell," military recruiters were unable to sign that form, and on those grounds were kept from recruiting on campus.
In response, conservative members of Congress in 1994 passed the Solomon Amendment, which is at the heart of the dispute settled by the high court. The law allowed the Department of Defense, along with other departments, to withdraw federal grant money to universities that barred or prevented military recruitment on campus.
A later version of the law allowed the entire university to be penalized, even if only the law school barred military recruiters. Faced with losing millions of dollars in research and grant funding, law schools began inviting military recruiters back, though many granted them only bare-minimum access. Monday's ruling makes those tactics, which included denying recruiters on-campus offices or use of office equipment, unacceptable.
The 3rd Circuit Court of Appeals decided in favor of the schools last November, having found that that "the Solomon Amendment violates the First Amendment by impeding the law schools' rights of expressive association and by compelling them to assist in the expressive act of recruiting."
But the Supreme Court's justices did not uphold that finding. During oral arguments, Roberts seemed especially troubled by the First Amendment claims, since the schools are free to decline the federal funding.
Moreover, he noted, no reasonable person would believe the presence of military recruiters on a law school's campus signaled the law school's support for "don't ask, don't tell."
"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," Roberts wrote in Monday's opinion. "The Solomon Amendment neither limits what law schools may say nor requires them to say anything."
The law schools had also argued that much of the assistance they gave to recruiters, such as sending out e-mails and flyers notifying students of a recruiting event, involved speech, and that assisting the military would be a kind of compelled speech. But that claim "trivializes" instances of actual compelled speech, Roberts scoffed, such as when students are forced to recite the Pledge of Allegiance.
"I think Chief Justice Roberts accurately concluded at the end of the opinion that the plaintiffs and the 3rd Circuit court were pushing the envelope on First Amendment doctrine," said Stewart Schwab, dean of Cornell Law School. Cornell University filed an amicus brief supporting the law schools.
Schwab said he was not surprised at the court's opinion, but defended the law schools' efforts to keep military recruiters off campus.
"[Law schools] feel we have taken the lead on non-discriminatory policy for legal employers across the board," Schwab said. "Our students and faculty think this is an important principle ... that how good a lawyer one is has nothing to do with sexual orientation."
Indeed, the nation's top law firms place a heavy emphasis on diversity in large part because the nation's top law schools began barring recruiters that discriminated or harassed minorities and women in the 1970s.
The court did not address the merits of "don't ask, don't tell," nor was it expected to. The Department of Defense's main argument against the law schools was that in wartime, the government must be able to recruit the best and brightest. In that sense, the case has more to do with the War on Terror than on gay rights.
"You really need the best people in the JAG Corp," said Joseph Zengerle, a Vietnam veteran, law professor and executive director of the Clinic for Legal Assistance to Servicemembers at George Mason's law school. "Look at what's happened with torture and treatment of detainees. You want the best advisers to the political administration you can get."
Both he and Schwab guessed that "don't ask, don't tell" was not long for the world. A report issued earlier this month by a University of California Blue Ribbon Commission said the policy has cost the military $363.8 million over 10 years, and a bill overturning the policy is working its way through the House.
Justice Samuel Alito, who sat on the 3rd Circuit when it decided the case, recused himself, presumably because of ties to a law school involved. He did not participate in the Supreme Court's decision either, since it was argued before his confirmation to the bench.