The Supreme Court appeared ready Tuesday to uphold a law that says colleges cannot turn away military recruiters in protest of the Pentagon's policy on gays if the universities also want to receive federal money.
New Chief Justice John Roberts said schools unhappy with the “don't ask, don't tell” policy have a simple solution: turn down federal cash.
And Justice Sandra Day O'Connor, who is retiring, said colleges can post disclaimers on campus noting their objections to military policy.
Law school campuses have become the latest battleground over the policy allowing gay men and women to serve in the military only if they keep their sexual orientation to themselves.
Solicitor General Paul Clement said that when the government picks up the tab for things like research and education grants, the military also is entitled to demand “a fair shot” in terms of equal access for its recruiters to a university's “best and brightest.”
Clement said the military is receiving nothing more than any other donor would expect.
A First Amendment fight
A few justices, including David Souter, worried that the free speech rights of law schools could be hindered by Congress' action of tying funding to military recruiters’ access.
“The law schools are taking a position on First Amendment grounds, and that position is in interference with military recruiting, no question about it,” Souter said.
More court members seemed concerned about military recruitment in the post-Sept. 11 world.
Federal financial support of colleges tops $35 billion a year, and many college leaders say they could not forgo that money.
About a half dozen supporters of the law waved signs, with slogans such as “America's Doomed,” and yelled at reporters and passers-by in front of the court before the argument.
“The Supreme Court shouldn't even have to debate about this,” said Rebekah Phelps-Roper, 18, of Topeka, Kan., one of the supporters.
Some students camped out overnight to get seats for the argument. Dan Noble, 26, a gay Yale Law School student, said that “you feel discriminated against when some recruiters will interview your fellow students but won’t interview you.”
Immediately after the arguments, the Supreme Court released an audio tape to news organizations because of interest in the case. Cameras are not allowed in court.
Many law schools forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.
Law schools have “a Hobson's choice: Either the university must forsake millions of dollars of federal funds largely unrelated to the law school, or the law school must abandon its commitment to fight discrimination,” justices were told in a filing by the Association of American Law Schools.
Often divisive issue
The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit money from federal agencies like the Education, Labor and Transportation departments.
Dozens of groups have filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.
The latest case stems from a lawsuit against the Pentagon by a group of law schools and professors claiming their free-speech rights are being violated, on grounds they are forced to associate with military recruiters or promote their campus appearances.
Free-speech cases are often divisive at the court.
If Samuel Alito, President Bush's nominee to succeed O’Connor, is confirmed by the Senate before the case is decided he could be called on to break any tie vote.
A panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals found it was reasonably likely that the law violated free speech rights.
Alito serves on that appeals court but was not involved in the case.
The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.