By MICHAEL DOYLE
December 07, 2005
Justices showed sympathy for the Pentagon and pronounced skepticism over how the schools handle the military's alleged anti-gay bias. Several all but endorsed the law that cuts off federal funding if the military recruiters don't get equal campus access. "It doesn't insist that you do anything," Chief Justice John Roberts said of the congressional rule. "It says that if you want our money, you have to let our recruiters on campus."
The law schools are challenging the so-called Solomon Amendment, an 11-year-old law initially named for a late New York congressman and later pushed by California Republican Richard Pombo. In its current form, the law denies universities federal funds if the university's law school refuses to provide military recruiters access "that is at least equal in quality and scope" to that given commercial recruiters.
The law schools, though, disagree with the military's "don't ask, don't tell" policy prohibiting homosexuals from serving. Boston College Law School, for one, allowed recruiters on campus but kept the military's brochures in the library instead of the career services center.
With the federal government currently providing universities $35 billion annually, the schools claim a threatened funding cutoff effectively squelches their speech. They also claim they are being forced to associate with those they don't agree with.
"The schools are entitled to make their own decisions about what messages they will disseminate," argued E. Joshua Rosenkranz, attorney for the Forum for Academic and Institutional Rights. Instead, "the schools are being forced to host the government's message. (And) the message the universities are hearing is, 'Join the military, but not if you're gay.' "
Under the Pentagon's policy, 2,970 openly homosexual members of the military were discharged between 2001 and 2003. The Forum for Academic and Institutional Rights includes faculty members from 36 public and private law schools, including Stanford, the University of San Francisco and the University of Minnesota.
But while the law schools won earlier at the 3rd U.S. Circuit Court of Appeals, the hour-long oral arguments Tuesday morning showed they're underdogs now. They also face some scorn on Capitol Hill, where the original Solomon Amendment was approved by a 271-126 margin.
"They're hypocrites," Pombo said of the law schools. "How upset can they be if they keep taking the government's money?"
Yale Law School Dean Harold Koh, speaking after the oral arguments, retorted that federal funds should not be used to "force (us) to aid and abet discrimination against our students."
Substantively, with more than a dozen uniformed military lawyers watching from the front rows, justices repeatedly struck at the heart of the law schools' case. The notion that law school students will assume the schools share the Pentagon's message drew particular criticism.
"Nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," Roberts said. "Nobody thinks the law school believes everything that the employers are doing or saying."
Rosenkranz said career services workers end up sending e-mails and distributing literature on the Pentagon's behalf. Several justices retorted that a better solution would be for the schools to simply articulate their disagreement with the Pentagon.
"It seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails and advertisements that say the law school does not approve, and in fact, disapproves of the policies of some of the employers who you will meet," Justice Anthony Kennedy said.
Justice Stephen Breyer agreed that "the remedy for speech you don't like is not less speech, but more speech," while Justice Sandra Day O'Connor pitched in that school officials could simply tell "every student who enters the room" that the school opposes discrimination.
That essentially already happens at the University of the Pacific's McGeorge School of Law. The assistant dean for career services, Ruthe Ashley, said Tuesday that the school simply posts anti-discrimination notices on the days military recruiters show up.
"We simply say once you let us on campus, just give us and extend to us an opportunity to recruit on the same terms as others," Solicitor General Paul Clement said.
While Justice David Souter pressed Clement on some points, the court's overall tenor was summed up during Clement's four-minute rebuttal. He spoke the entire time without a single interruption, an extraordinary bit of restraint from justices who usually chew attorneys to pieces.
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