Supreme Court justices skeptical on recruiting ban
Law schools resist military on gays
Wednesday, December 07, 2005
By Michael McGough, Post-Gazette National Bureau
post-gazette.com
WASHINGTON -- Law schools that want to bar military recruiters from their campuses because they view the Pentagon's "Don't Ask, Don't Tell" policy on homosexuality as discriminatory yesterday ran into hostile fire on several fronts before the U.S. Supreme Court.
Both liberal and conservative justices reacted skeptically to a claim by E. Joshua Rosenkranz, representing the law schools, that his clients' First Amendment rights were violated by a law requiring federally funded universities not only to welcome military recruiters on campus but also to provide them with access "at least equal in quality and scope" to that afforded other employers.
"Recruiting is all about speech," Mr. Rosenkranz told the court, arguing that the law known as the Solomon Amendment forces law schools to endorse the military's message of discrimination against self-acknowledged homosexuals.
"It doesn't insist that you do anything," Chief Justice John G. Roberts Jr. replied. "It says that 'if you want [the Pentagon's] money, let military recruiters on campus.' "
Chief Justice Roberts, an especially active questioner yesterday, focused repeatedly on the fact that the Solomon Amendment was an exercise of Congress' power to demand certain conduct in exchange for federal aid. He compared it with a law the Supreme Court upheld in 1987 that required states seeking federal highway funds to raise their drinking age to 21.
Last year, the 3rd U.S. Circuit Court of Appeals in Philadelphia issued an injunction against the Solomon Amendment, a much-amended law named for its sponsor, the late U.S. Rep. Gerald Solomon, R-N.Y.
By a 2-1 vote, the appeals court accepted an argument by the Forum for Academic and Institutional Rights, or FAIR, an alliance of 31 law schools, that the law interfered with the schools' right to free speech and free association. Many law schools ask all recruiters to affirm that they don't discriminate on the basis of race, sex, gender or sexual orientation.
But U.S. Solicitor General Paul D. Clement, representing the Bush administration, told the court that the amendment, which he said was designed to give the armed services "a fair shot at recruiting the best and the brightest," does not violate the First Amendment.
In response to a question from Justice Ruth Bader Ginsburg, Mr. Clement said law schools were free to dissociate themselves from the military's "Don't Ask, Don't Tell" policies. "They can put signs up on the bulletin board next to the room, [and] they could even organize a student protest," he said.
That approach seemed to find favor with several justices. Justice Stephen Breyer suggested to Mr. Rosenkranz that, rather than try to silence military recruiters, law schools should amplify their disapproval of the Pentagon's policies. "The remedy for speech you don't like is more speech," he said.
Justice Sandra Day O'Connor, who may not be on the court when the case is decided, reminded Mr. Rosenkranz that, even under the Bush administration's view, law schools could express opposition to Pentagon policies "to every student who enters the room."
When Mr. Rosenkranz replied that the students wouldn't believe the law school's disclaimer, Chief Justice Roberts interjected: "The reason they don't believe you is that you're willing to take the [federal] money."
In trying to defend the 3rd Circuit's ruling, Mr. Rosenkranz had to contend with a barrage of objections from the bench finding fault with virtually every aspect of his case.
Justice Breyer worried that if a federally funded law school had a First Amendment right to deny access to military recruiters, schools that wanted to discriminate on the basis of race and gender might make a similar argument that complying with civil rights laws muddled their message.
Justice Anthony M. Kennedy disputed the notion that recruiting law students was an exercise in protected speech, calling it "a commercial transaction."
Justice Antonin Scalia, echoing the dissenting opinion in the 3rd Circuit ruling, suggested that the court could decide the issue in the government's favor by citing Congress' authority under the Constitution to "raise and support armies."
The only member of the court who seemed to accept Mr. Rosenkranz's arguments was Justice David H. Souter. When Justice John Paul Stevens, a World War II veteran, suggested that the only message being propagated by military recruiters was "Join the Army," Justice Souter countered by noting that to opponents of "Don't Ask, Don't Tell" the real message was: "Join the Army, but not if you're gay."
The court is expected to rule in this case by June or early July. In the meantime, the military will continue to recruit at law schools because the 3rd Circuit stayed its injunction during the appeals process.
* * * |
