The U.S. military says it accepts homosexuals in its ranks, as long as they are not openly gay. Many law schools say this "don't ask, don't tell" policy is discrimination, which violates the schools' principles. They want to show their disapproval by denying military recruiters the same help contacting students that other employers get.
At Supreme Court oral argument yesterday, the question was whether the Constitution protects this protest -- or permits Congress to cut federal funds to any university whose law school engages in it.
The Solomon Amendment, a federal law whose most recent version was adopted in 2004, seeks to do just that. Enacted at the urging of the Bush administration, it says that military recruiters' access to campuses and students must be "equal in quality and scope" to that enjoyed by "any other employer." Otherwise, the schools stand to lose millions of dollars -- hundreds of millions in the case of institutions such as Yale and Harvard.
E. Joshua Rosencranz, a lawyer for 36 law schools that oppose the military's policy, told the justices that the law violates the schools' rights to free speech and freedom of association.
"What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message," Rosencranz said. He said that the Solomon Amendment forces schools to "abet discrimination."
But that argument got a chilly reception. Chief Justice John G. Roberts Jr. told Rosencranz that the government "doesn't insist you do anything. It says that if you want our money, you have to let our recruiters on campus."
Justice Anthony M. Kennedy told Rosencranz that "your argument would allow schools to exclude anybody in uniform from a cafeteria."
Justice Sandra Day O'Connor observed that "the government takes the position that the law school is entirely free to convey its message to everyone who comes."
And Justice Stephen G. Breyer suggested that Rosencranz's argument could be used by "the worst segregationists you can imagine" to limit blacks' access to a campus.
Rosencranz stressed that the law schools' belief in anti-discrimination is so strong -- and their affiliated universities' need for federal funding so great -- that the Solomon Amendment amounts to an unconstitutional restraint on the schools' First Amendment rights.
"You can't put a private speaker to that crisis of conscience," he told the court.
Yesterday's argument is the latest stage in a long-running legal battle between the 36 schools, grouped as the Forum for Academic and Institutional Rights (FAIR), and the federal government.
Last year, the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia, upheld FAIR's position. The Bush administration appealed to the Supreme Court.
Though Rosencranz's argument got little traction with the court, some justices floated a concept derived from a friend-of-the-court brief by members of the Harvard law faculty: that the Solomon Amendment creates a special military exemption to an anti-discrimination standard that all employers must meet to get on campus.
Solicitor General Paul D. Clement conceded that the Solomon Amendment gives military recruiters access some other employers might be denied, but he said that the issue now is the schools' efforts to limit aid to military recruiters once they are in the door. It was in response to those efforts to protest without losing funding that the 2004 version of the Solomon Amendment was enacted, he said.
"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,' " Clement said.
The case is Rumsfeld v. FAIR, No. 04-1152. A decision is expected by July.