The U.S. Supreme Court heard oral arguments on whether the federal government can force law schools to help military recruiters on campus or lose all federal funding. The spirited session took place Dec. 6.
The case is known as Rumsfeld v. Forum for Academic and Institutional Rights ( FAIR ) . The law schools who are members of FAIR argued that they historically have had a policy of nondiscrimination and over the years have extended that to include sexual orientation. Forcing them to aid the recruitment effort of a group that discriminates is an unconstitutional violation of their right to free speech under the First Amendment.
The Pentagon said it needs to be able to recruit lawyers in order to provide for the nation's defense. Congress agreed, passing what is known as the Solomon Amendment, which denies federal funds to schools that did not give military recruiters equal access to students.
The Solomon Amendment 'simply asks what other employers receive,' said U.S. Solicitor General Paul D. Clement. 'The recipient schools remain free to criticize the military and its policies. And, of course, they remain free to decline federal funds altogether.'
Justice David Souter pressed him on the speech issue saying, 'You are forcing them, in effect, to underwrite your speech, and you are forcing them to change their own message.'
Clement agreed, but called it 'incidental' and not central to the commercial goal of recruitment.
Souter differentiated between the process of recruitment, where the speech issue may be incidental, and the Solomon Amendment, which 'is responsive entirely to positions taken by law schools on First Amendment expressive grounds.'
Clement said the law schools might make quite clear their opposition to the military policy of discrimination against gays, even to the point of harassment while on campus. Several of the Justices expressed skepticism of that statement.
One interesting point is that the government defended the case on grounds of its authority to spend money rather than on its authority to raise an army.
'What Congress really wants [ with the Solomon Amendment ] is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message,' said FAIR attorney E. Joshua Rosenkranz.
Chief Justice John Roberts didn't appear to buy the argument. 'You [ the law schools ] are saying, this is a message [ of nondiscrimination ] that we believe in strongly, but we don't believe in it to the tune of $100 million.'
'That's right your honor. The unconstitutional conditions doctrine [ of constitutional law ] says that you can't put a private speaker to that crisis,' Rosenkranz argued.
Justice Antonin Scalia cited the Court's 1981 Goldberg decision which said, 'Judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.' He said, 'That is precisely what we have here.'
Rosenkranz disagreed. He said that deference should occur when Congress or the military have particular expertise in an area, and they do not in matters of recruitment from law schools.
He later added in response to a question from Justice Anthony Kennedy, the military 'has never come forward with a shred of evidence that it actually needs to be on campus' in order to fulfill the mission of recruiting lawyers.
Justice Steven Breyer twice repeated the bromide that 'the remedy for speech you don't like is not no speech but more speech.'
Several lawyers involved in preparing briefs on the 'pro gay' side of the case discussed those issues later that evening at a forum sponsored by the American Constitution Society for Law and Policy, held at the George Washington University Law School.
Sharon Frase was the lead attorney in preparing the case for FAIR. She traced the evolution of the Solomon Amendment and the response by law schools. At its core, the law schools 'made a promise to all of their students, including their gay and lesbian students, that discrimination would have no place in that community.'
The law schools made certain accommodations to the military and a détente was achieved. But 9/11 changed that. As one officer told the Dean of the University of Southern California Law School, 'We don't want to play games with the law schools any more.'
'When the law schools said, we have no choice [ but to cave in ] , the students responded, then what does your nondiscrimination policy mean?' Frase said that pressure led to forming FAIR and filing the lawsuit.
American Civil Liberties Union attorney Kenneth Choe found it 'striking' that compelled association was not greatly discussed during the oral arguments before the Court, even though is was a principle foundation for the favorable decision from the Third Circuit court.
Daniel Mach helped to write an amicus brief on behalf of law schools. He said, under case law on the principle of compelled speech, 'It doesn't matter if you are allowed to disavow the message … that is not enough to cure a constitutional violation.'
'The government can't tax and spend its way out of the First Amendment. It cannot impose conditions as a condition of federal funding that they could not impose as a direct restriction,' said Beth Brinkmann in addressing what is known as the 'unconstitutional conditions doctrine.'
She said the government was 'trying to gut' this doctrine with many of the arguments it put forward. Countering that was a major focus of the amicus brief she wrote for the Human Rights Campaign and others.
Sharra Greer, legal director for the Servicemembers Legal Defense Network ( SLDN ) , noted that the legal issues discussed in this case have little direct bearing on the antigay policy known as Don't Ask, Don't Tell. However, it did occur within the aura of 'deference' to the militarya subject that is seldom taught in law school and whose 'scope and breadth is unclear.'
In many instances the Court has looked to questions of 'fit' with the central purpose of the military and to their expertise in the field in determining their deference. Greer said, 'Recruiting law students is not something where the military has great expertise.'
All of the attorneys were wary of predicting how the Court will come down on this case.
'If I had to guess, I think it would probably go in the government's favor,' said Choe. 'But there are good ways and bad ways to win or lose.'
It also is possible that the Court could splinter with a plurality and not a majority decision, and partially concurring and dissenting opinions.
Further complicating the scenarios is the fate of Justice Sandra Day O'Connor. She remains on the Court only until a successor is confirmed by the Senate, and that seems likely to occur in January. Her vote will not count if she is no longer on the Court when the opinion is released. If the Court deadlocks, the case will be reargued.