Law schools across the country have a keener than usual interest in a case that comes before the Supreme Court on Tuesday, namely because so many of them are involved in the dispute.
Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) pits the military's interest in recruiting top students for its Judge Advocate General (JAG) Corps against universities protesting a federal law barring openly gay men and women from serving in the nation's defense forces.
The military's "don't ask, don't tell" policy was crafted during the Clinton administration as a compromise measure that allows gays to serve in the armed forces as long as they do not disclose their sexual orientation. The law also prohibits military leadership from seeking such information about military personnel.
Most law schools have broad non-discrimination policies and have traditionally refrained from assisting employers who do not meet equal opportunity guidelines. Employers seeking to recruit on campus usually must sign a form stating they do not discriminate on the basis of race, national origin, gender, sex and sexual orientation in their hiring practices.
After "don't ask, don't tell" was enacted, military recruiters had to turn away openly gay students seeking employment with the armed forces. Because military recruiters could not sign the anti-discrimination form, many law schools, including those at Yale and Harvard, stopped inviting them to recruit on campus.
Conservative lawmakers have sought to penalize those universities. In 1994, Congress passed the Solomon Amendment, which allowed the Department of Defense to withdraw federal grant money to universities that barred or prevented military recruitment on campus. Funds from other departments, such as Labor and Education, could also be withdrawn.
While the amendment initially targeted just the law schools' funding, a later version allowed entire universities to be penalized. For many universities with large medical and science departments, that translated to millions of dollars in research grants.
As a result, most law schools that protest the "don't ask, don't tell" policy again allow the military to recruit on campus. But many joined in a lawsuit against the government, arguing their First Amendment rights are being violated.
Last November, the 3rd Circuit Court of Appeals decided in favor of FAIR, finding 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."
The court cited two earlier cases that dealt blows to gay rights. The Supreme Court ruled in 2000 that the Boy Scouts could fire an openly gay scoutmaster because his very presence contradicted the organization's philosophy toward gays. In 1995, the high court held that an organization that sponsors a St. Patrick's Day parade in Boston did not have to include a group of gay Irish-Americans.
The government counters that neither the act of recruiting students on campus makes the military a part of the university's makeup, nor does recruiting force universities to "send a message" contradictory to its beliefs. Moreover, the government says, the military's access to potential recruits should not be impeded in wartime.
"Primarily, the case is about the United States wanting to be treated no better, but certainly no worse, than the way that every law firm and business firm and potential employer for law students is treated when they come to campus," said Douglas Kmiec of Pepperdine University School of Law.
Kmiec is one of about three dozen law professors who filed an amicus brief supporting the government.
"The Solomon Amendment does not in any way require law schools to affirm military policy," Kmiec said. "You would think that law schools with their devotion to free speech would encourage that conversation rather than say, 'We're not going to allow these people here.'"
Law professors supporting FAIR say the government isn't asking for equal treatment; it's asking for special treatment in wanting to recruit on campus without complying with law schools' equal opportunity mandates.
"We're not challenging 'don't ask, don’t tell.' We're not telling the military how to run the [Iraq] war or recruit. We just have a general policy that we don't allow recruiters that discriminate against gay people," said Sylvia Law, who teaches at New York University Law School and is a co-respondent in the lawsuit.
While government has "absolute discretion" to attach strings when disbursing funds, it cannot "attach a string that says you lose what would otherwise be your First Amendment right," Law said.
Law pointed out that law schools have traditionally been on the forefront of anti-discrimination fights. Major law firms emphasize diversity in hiring, a practice that in large part dates back to the 1970s when campuses began barring recruiters that discriminated or harassed minorities and women.
If the Solomon Amendment is upheld, opponents say, government's power to yank federal funding based on policy differences could be expanded to cover such areas as stem cell research. Universities could also be put in the uncomfortable position of facilitating instances of discrimination, such as one in which a gay law student is told he or she has no shot at a job because of his or her sexuality.
Such instances of discrimination are not confined to personal encounters with military recruiters, opponents of the law contend. Jason Reade, a 26-year-old gay student at Brooklyn Law School, described becoming angry and offended when he recently received a form recruitment letter from the Army JAG Corps. The university presumably provided the corps with his address.
Though he soon found himself laughing at the irony of it, Reade said the experience was like a "slap in the face."
While the court has split somewhat predictably on First Amendment cases, the justices will also have to weigh the government's power to place conditions on federal funds. Chief Justice John Roberts, who served as counsel for the government under President Reagan and the first President Bush, may be inclined to read the Solomon Amendment narrowly.
In the early 1980s, the then-associate White House counsel advised in an internal memo that entire institutions should not be subject to the conditions of federal anti-discrimination laws when only one office or department receives federal funds.
Roberts wrote that such overbroad requirements would "radically expand the civil rights laws to areas of private conduct never before considered covered."
A ruling that the Solomon Amendment is constitutional but should only apply to the departments in question would perhaps be an even bigger loss for the government than for FAIR. Most law schools do not receive substantial federal funding, and larger universities in particular could comfortably keep military recruiters off campus.
Should the Supreme Court reach a tie ruling after Justice Sandra Day O'Connor retires, the case may have to be re-argued so her successor can weigh in. But nominee Samuel Alito's vote might not be seen even if he is confirmed to the court. He was one of the many members of the 3rd Circuit Court who recused themselves from the case, probably because of ties to the law schools involved.
Neither FAIR nor the government is arguing the merits of "don't ask, don't tell," and civil rights groups hoping the court addresses the policy will likely be disappointed. But a decision in favor of FAIR could be read as a sign that the justices are growing uncomfortable with the measure.
Congress may be leaning that way as well. Rep. Marty Meehan, D-Mass., who sits on the House Armed Services Committee, has introduced a bill that would repeal the law. Government reports released earlier this year revealed "don't ask, don't tell" has cost the military nearly $200 million along with hundreds of "mission critical" personnel, including Arabic translators. At least 104 members of Congress have signed onto the Military Readiness Enhancement Act, Meehan's spokeswoman said Monday.