Military Recruiting Bans Seem Doomed

The Supreme Court justices signaled Tuesday that they would uphold the military’s right to recruit on college campuses and at law schools, despite its policy of excluding openly gay people from its ranks.

The justices gave a thoroughly skeptical hearing to the position of some law faculties that they have a free-speech right to bar military recruiters, a claim that was upheld by a lower court.

U.S. Solicitor General Paul D. Clement urged the justices to reverse that ruling and to enforce a measure passed by Congress that says colleges and universities that take federal funds must give the military the same right to recruit on campuses as other employers.

This law, known as the Solomon Amendment, “allows the military a fair shot at recruiting the best and the brightest for the military’s critical and vital mission,” Clement said. However, law schools and their faculties “remain free to criticize the military and its policies,” he added.

To the surprise of some justices, Clement said law schools could even organize protests and jeer at military recruiters.

“Army recruiters are not worried about being confronted by speech,” Clement said, explaining that all they want is an equal opportunity to meet with interested students.

“You’re not going to be an Army recruiter, are you?” asked Justice Antonin Scalia to laughter in the courtroom.

The case marked the second in a week in which the court, under new Chief Justice John G. Roberts Jr., sounded as though it had come together on a potentially divisive case.

Last week, the justices took up an abortion case from New Hampshire and appeared to agree on a middle course. The state may require doctors to notify a parent of a minor girl before performing an abortion, except in medical emergencies, the justices said.

On Tuesday, Roberts and the other justices seemed to agree that there was no free-speech problem with giving the Pentagon a right to recruit on campus, as long as the schools and their professors were free to criticize the military.

The issue of military recruiting on campus has echoes from the Vietnam War era. In the late 1960s, Congress gave the Pentagon the right to cut off funds to colleges and universities that barred military recruiters from campus.

The issue flared anew when some law schools refused to host military recruiters to protest the Pentagon’s ban on openly gay service members. That led Rep. Gerald B.H. Solomon (R-N.Y.) to sponsor the 1994 amendment.

“If they are too good or too righteous to treat our nation’s military with the respect it deserves, then they may also be too good to receive the generous level of taxpayer dollars presently enjoyed by many institutions of higher education in America,” said Rep. Richard W. Pombo (R-Tracy), a co-sponsor of the amendment.

Earlier this year, Congress strengthened the amendment to say the military must be able to recruit on campuses or at law schools “in a manner that is at least equal in quality and scope” to the access given to other employers. If law schools violate this rule, the entire college or university could lose its federal funding.

The nation’s law schools declared in 1990 that they would not make their facilities available to recruiters for employers who discriminate based on race, gender, religion, disability, age or sexual orientation.

Two years ago, a coalition of law schools and professors sued to challenge the Solomon Amendment as unconstitutional. They won a 2-1 ruling from the U.S. Court of Appeals in Philadelphia, which said the amendment forced law schools to host military recruiters and thereby compelled them to “propagate the military’s message.”

Joshua Rosenkrantz, a New York lawyer who represented the law schools, said these institutions resented “disseminating the military’s message.”

That claim ran into sharp objections from the court Tuesday.

“The law school is entirely free to convey its message [opposing the military’s policy] to everyone who comes,” Justice Sandra Day O’Connor said.

Roberts said he too did not understand how this was a case of “compelled speech,” since the law schools need not say anything. “Nobody thinks the law school believes everything that the employers are doing or saying,” he said.

The chief justice said the schools could avoid the problem by turning down the money. The Supreme Court has not ruled squarely on whether the military’s anti-gay policy violates the Constitution’s guarantee of equal protection of the laws. However, it has turned away several legal challenges to that discriminatory policy.

Tuesday’s argument focused almost exclusively on the free-speech issue.

Even the court’s liberal justices said they disagreed with the argument that allowing military recruiters on campus violated the free-speech rights of law schools.

Justice Stephen G. Breyer said he too did not see how an equal access rule for military recruiters violated the 1st Amendment. “The remedy is not less speech, but more speech,” he added. Rather than excluding military recruiters, professors and students should use the opportunity to express their disagreement with the military’s policy, he said.

By the end of the hour, there was little doubt the Supreme Court would reverse the decision of the lower court and uphold the Solomon Amendment.

The case is Rumsfeld vs. Forum for Academic and Institutional Rights.