Law schools battle U.S. in High Court argument over military recruiters.

Law schools that refuse to assist military recruiters based on antidiscrimination principles say they should not be denied federal funding under the so-called Solomon Amendment for doing so. The Supreme Court recently heard oral argument on whether the statute unconstitutionally conditions funds on schools' waiving their First Amendment rights. (Rumsfeld v. Forum for Academic & Institutional Rights, No. 04-1152 (U.S. argued Dec. 6, 2005).)

The Forum for Academic and Institutional Rights (FAIR), a coalition of 36 law schools, filed suit to challenge the Solomon Amendment in 2003. The Third Circuit ruled in favor of FAIR the next year, reversing a lower court's decision. (Allison Torres Burtka, Law Schools May Refuse Military Recruiters and Keep Federal Funds, TRIAL, Feb. 2005, at 70.)

Most law schools have long-held policies against assisting discriminatory employers, including the military because of its refusal to enlist openly gay men and women. Most schools allowed military recruiters on campus but did not help them by, for example, posting bulletins, disseminating literature, and making appointments for them.

"This is about law schools with a well-established policy saying that they don't want to be a party in any way to discrimination against their students," said Erwin Chemerinsky, a Duke University law professor and one of the plaintiffs named in the case.

Enacted in 1994, the Solomon Amendment initially allowed Department of Defense funds to be withheld from law schools that barred military recruiters. It was later expanded to include funds from other federal agencies and those given to the parent university as well as the law school. After September 11, 2001, law schools were required to provide recruiters not just access but access that is "at least equal in quality and scope" to what they provide other employers. Most schools threatened with losing federal funds have since reversed their policies.

E. Joshua Rosenkranz, a New York City lawyer who argued the case for FAIR, said the case involves two messages: the military's message that "Uncle Sam doesn't want you [if you're openly homosexual]" and the law schools' message that they "don't abet those who discriminate."

Rosenkranz said the Solomon Amendment, by forcing schools to advance the military's message, compels speech and violates their freedom to associate. It also infringes on their right to advance their own message against discrimination, he said.

At oral argument, Solicitor General Paul Clement, who argued the case for the government, said the Solomon Amendment gives the military "equal opportunity to recruit from the same pool as other employers."

But the military demanded not simply equal treatment but "exceptional treatment--a demand to be the only discriminatory employer that a law school will assist," FAIR said in its brief to the Supreme Court. Rosenkranz noted that under the Solomon Amendment, the government regulates speech in ways that advance only the government's message, which constitutes viewpoint discrimination.

At oral argument, the Court considered the practical meaning of "equal access." Justice John Paul Stevens asked Clement about a situation in which a law school gives military recruiters equal access but uses undergraduate facilities rather than law school facilities, to send a "separate but equal" message. Clement said such treatment is not equal in scope.

Justice Anthony Kennedy asked Clement whether the statute allows a school to organize a protest aimed at the recruiters. Clement said yes; it provides the right to equal access but not the right to be free of protest.

Clement noted that law schools could deny recruiters access for other reasons, such as the war in Iraq--not just because of discrimination against homosexuals. Justice David Souter said that, regardless of the law school's motive for barring recruiters, the question of compelled speech--"forcing them to underwrite your speech, forcing them to change their message"--remains.

Chief Justice John Roberts Jr. remarked that no one thinks law schools speak for the recruiters on campus, so the military's message is unlikely to be attributed to them.

Clement suggested that a ruling in FAIR's favor might actually threaten antidiscrimination protections. Exploring that point, Justice Stephen Breyer asked Rosenkranz whether Bob Jones University, which opposes racial mixing, would have the same right as law schools to protect its message and receive federal funding.

Rosenkranz responded that there is "an enormous difference between antidiscrimination laws and the Solomon Amendment" and that acts of discrimination are not entitled to First Amendment protection.

The decision also could affect the No Child Left Behind Act, which contains a provision requiring high schools to provide students' names and contact information to military recruiters, said Kent Greenfield, a Boston College Law School professor and president of FAIR. "Like the Solomon Amendment, the No Child Left Behind Act conditions federal funds on schools' willingness to assist military recruiters," he noted.

If the Solomon Amendment is upheld, Chemerinsky said, law schools that agree to provide equal access may print statements to distribute to students explaining why they accommodate military recruiters and condemning the military's policies.

FAIR expressed concern about the government's ability to condition federal funding on waiving First Amendment protections on a broader scale. "That's really what this case is about," Chemerinsky said. "Can the government use its tremendous coercive power to force people to give up their constitutional rights?"

The decision "could have a devastating effect on the role of the academy," Rosenkranz said. "The government's theory is that as soon as a school accepts the government's money, it has no First Amendment right to decline a request from any government agency to disseminate its messages."

Greenfield agreed. "We all receive federal benefits of some kind: Social Security, welfare, mortgage deductions, student loans," he said. "If the government can condition those benefits on the recipients' agreement to not exercise First Amendment rights, then only those who do not need the government at all could speak out against it."