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At the Supreme Court today, arguments in a case testing a law known as the Solomon Amendment. It withdraws all federal funds from a university if even one of the university's schools or departments denies equal access to military recruiters. The case pits the military's don't ask, don't tell policy against law schools' policies against discrimination. For the second time in a week the justices allowed audio of the arguments to be released. NPR's Nina Totenberg has our report.
NINA TOTENBERG reporting:
For decades most law schools have allowed the military on campus to recruit at its law schools even though the military refused to pledge not to discriminate against homosexuals. But the schools did not provide the same administrative support to the military that they provided to other recruiters. In 2001, though, came the Bush administration and 9/11, and the universities were told they would lose all federal funding campuswide, some $35 billion nationally, unless they provided exactly the same services for military recruiters at law schools as they provided for other recruiters. For example, law school personnel, not anyone else, would be required to schedule appointments and distribute the military's literature to the students.
The schools contended that conscripting their personnel to carry the military's message put an unconstitutional condition on their funding. The schools filed the legal challenge and won in the lower courts. But in the Supreme Court today, their argument got a distinctly unsympathetic reception, not that the justices gave an easy ride to the government's advocate either. Solicitor General Paul Clement got only a few sentences out of his mouth before Justices Scalia and O'Connor bore in, noting that the federal government is asking for special treatment.
(Soundbite of hearing)
Justice ANTONIN SCALIA (US Supreme Court): These institutions, I gather, would not allow other employers, who have the same policy against the hiring of homosexuals, to interview at their institutions.
Justice SANDRA DAY O'CONNOR (US Supreme Court): It says the military must have equal access with any other employer. Now every other employer is subject to the same policy presumably of the law school.
Mr. PAUL CLEMENT (Solicitor General): I think the Solomon Amendment itself is a recognition that the military is not like any other employer.
TOTENBERG: `And once you let us on campus,' said Clement, `all the government asks is that its recruiters be treated the same way that other recruiters are. And if the law school chooses not to do that, the university loses its federal funding.' Justice Scalia.
(Soundbite of hearing)
Justice SCALIA: Why do you choose to defend this principally on the basis of the spending clause and not on the basis of what it would seem to me enacted in order to achieve, and that is the congressional power to raise and support armies?
Mr. CLEMENT: Well, Justice Scalia, I think the statute is clearly supported under both provisions.
TOTENBERG: Clement went on to argue, in an exchange with Justice Ginsburg, that if the equal access requirement is a violation of the university's right to express itself and associate with whom it wants, well, then almost any federal requirement could become a First Amendment problem.
(Soundbite of hearing)
Mr. CLEMENT: And you could easily see that a university could take their position to its logical conclusion and say, `In order to show just how much we don't like the military's policy, we're not only not going to not let military recruiters on campus, but we are going to not hire former military people, veterans, and we're not going to admit them to our classes.'
Justice RUTH BADER GINSBURG (US Supreme Court): That would be rather far-fetched. The pitch that's being made is an equality pitch.
TOTENBERG: Justice Souter observed that even if one takes account of the special role of the military, the law school is still being forced to carry a message it disagrees with. That prompted this question from Justice O'Connor.
(Soundbite of hearing)
Justice O'CONNOR: Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military's views? Can there be signs up at every recruitment office saying, `Our law school doesn't agree with any discrimination against gays'?
Mr. CLEMENT: Yes, they can, Justice O'Connor. I think there would be--in fairness, I want to be clear--I think there might be a line where there would be--the recruitment office could conduct itself in a way that would effectively deny access.
TOTENBERG: Justice Stevens then asked what's wrong with the school's position that they provide access, even the same services, but those services are provided by administrators at other schools on the campus, not law school personnel. Chief Justice Roberts chimed in with this pithy characterization of such a policy.
(Soundbite of hearing)
Chief Justice JOHN ROBERTS (US Supreme Court): Separate but equal.
TOTENBERG: Justice Ginsburg wondered about what she called the `real-life example' at Yale Law School. Her question prompted a further exchange with Justice Kennedy.
(Soundbite of hearing)
Justice GINSBURG: The recruiter is there. He's in the same room that other recruiters use. What can the law faculty do to disassociate itself, to say that, `We don't tolerate discrimination of any kind'?
Mr. CLEMENT: Concretely they could put signs on the bulletin board next to the door. They could engage in speech. They could help organize student protests.
Justice ANTHONY KENNEDY (US Supreme Court): They could organize a student protest at the hiring interview room, so that everybody jeers when the applicant comes in the door, and the school could organize that?
Mr. CLEMENT: I think that would be equal access.
Justice SCALIA: You're not going to be an Army recruiter, are you?
(Soundbite of laughter)
TOTENBERG: That last was from Justice Scalia.
Following Solicitor General Clement to the lectern was Joshua Rosenkranz representing the law schools. In an exchange with Chief Justice Roberts, he said that Congress is forcing more than military recruitment on campus; it's forcing the law schools to carry the military's don't ask, don't tell message.
(Soundbite of hearing)
Mr. JOSHUA ROSENKRANZ (Attorney): The reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law school themselves...
Chief Justice ROBERTS: It doesn't insist that you do anything. It says that, `If you want our money, you have to let our recruiters on campus.'
Mr. ROSENKRANZ: Yes, Your Honor, and under the doctrine of unconstitutional conditions, the analysis is exactly the same.
TOTENBERG: Justice Ginsburg asked if the schools' position would be the same for the whole university were it to adopt a non-discrimination policy like the law schools. Answer: `Yes.' Justice Kennedy, incredulous...
(Soundbite of hearing)
Justice KENNEDY: From medical schools--we can't get medical schools for our armed forces; chaplains the same way because it--schoolteachers who teach on military bases in order to make the point.
TOTENBERG: The response from lawyer Rosenkranz was, `Yes, if those schools also had a non-discrimination policy.'
Chief Justice Roberts then turned to another point, whether the law schools are being forced to associate themselves with the military's views.
(Soundbite of hearing)
Chief Justice ROBERTS: Nobody thinks the law school believes everything that the employers are doing or saying.
Mr. ROSENKRANZ: The law schools are disseminating a message that they believe it is immoral to abet discrimination when they...
Justice O'CONNOR: But they can say that to every student who enters the room.
Mr. ROSENKRANZ: And when they do it, Your Honor, the answer of the students is, `We don't believe you. We read your message as being that there are two tiers. There's a double standard.'
Unidentified Justice: But there are students...
Unidentified Justice: The reason they don't believe you is because you're willing to take the money.
TOTENBERG: Justice Stevens, himself a veteran of World War II, chimed in wondering if the school's logic would have applied in that era.
(Soundbite of hearing)
Justice JOHN PAUL STEVENS: So that it would have violated the First Amendment during World War II--whenever they're trying to raise an Army if they had compelled an unwilling university to provide recruitment facilities to the military?
Mr. ROSENKRANZ: Well, yes, Your Honor, unless there is a compelling need.
TOTENBERG: A compelling need, said lawyer Rosenkranz, would be a showing that the military is having trouble recruiting without the assistance of the law school in conveying the military's message. At that, the reaction from the justices seemed to grow distinctly chillier. A decision in the case is expected after the first of the year. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
