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By Eric Resnick
WASHINGTON – The U.S. Supreme Court will now decide whether institutions of higher learning can protest the military’s ban on gay servicemembers without endangering their federal funding.
Twenty five law schools, led by Yale, claim that a federal law compels them to violate the sexual-orientation clauses in their non-discrimination policies or lose all federal grants, including student aid.
The law, known as the Solomon Amendment, was dropped onto a large omnibus budget bill without debate in 1994 by now-deceased Rep. Gerald Solomon, a New York Republican and former Marine described as “an ardent conservative.”
The amendment forbids federal funds from going to schools that do not welcome military recruiters. It mimics a 1968 measure intended to stop schools from protesting the Vietnam War by kicking the Army ROTC off campus. The current version has been used exclusively against schools opposed to the military’s “don’t ask don’t tell” policy on gay and lesbian servicemembers.
In 1990, the American Association of Law Schools voted unanimously to include sexual orientation as a protected category. Its members require prospective employers to sign statements pledging not to discriminate based on sexual orientation, and withhold career placement services from employers who discriminate.
The Solomon Amendment was expanded two more times by Congress, in 1997 and 1999, each time to include more types of federal funds to be restricted.
In 2001 the Bush administration went further, saying that schools also had to contribute to recruiter activity by helping to promote them, as well as providing space and other accommodations. Congress enacted that rule into law this year, in a defense authorization act.
The law school group in the case, known as the Forum for Academic and Institutional Rights, is joined by the Society of American Law Teachers, the Coalition for Equality, the Rutgers Gay and Lesbian Caucus and five individuals affiliated with the schools.
FAIR wants the high court to agree with a November 2004 ruling by the Third Circuit Court of Appeals that the Solomon Amendment is unconstitutional because it “conditions funding on a basis that infringes law schools’ constitutionally protected interests under the First Amendment doctrine of compelled speech.”
The current suit, known as Rumsfeld v. FAIR, was filed in September 2003 with Defense Secretary Donald Rumsfeld named for the U.S. government.
The government claims that the military is not like other employers because the Constitution grants Congress sole authority to raise an army. Much of their case is centered on the military’s need to recruit law students from top universities, and their belief that the First Amendment does not trump military needs, especially during times of war.
The Third Circuit ruling relied on two Supreme Court decisions generally used to deny equality to GLBT people: the 2000 Boy Scouts of America v. Dale case allowing the Scouts to prohibit gay participation, and to lesser extent the 1995 Hurley v. Irish-American Gay Lesbian and Bisexual Group of Boston case allowing St. Patrick’s Day parade organizers to exclude a gay group.
Both of those cases involved “expression” and “compelled speech.”
The Bush administration, backed by a supporting congressional resolution, appealed the Third Circuit ruling to the Supreme Court, which heard the matter on Dec. 6.
Solicitor General Paul D. Clement argued on behalf of the government. E. Joshua Rosenkranz argued on behalf of FAIR. Each side got half an hour to present their case.
The government argues that the Solomon Amendment is not like the Dale decision because it does not change the composition of law school student bodies as Dale changed the Boy Scouts, nor does it regulate them.
The government says the schools are free to bar the recruiters – if they are willing to forfeit their right to federal money. This is $35 billion annually, $300 million to Yale alone.
FAIR argues that the law violates their “right to choose for themselves which causes to assist or resist.”
FAIR says the law compels speech by requiring them to serve military recruiters though quintessential “speech” activities such as posting announcements, introducing students to the recruiters and sponsoring private forums for information to be exchanged.
‘Military isn’t like other employers’
Seated directly behind the attorneys in the Supreme Court chamber were 12 uniformed military judge advocates general, admitted to the high court bar immediately before the hearing. Also present were six gay and lesbian Yale law students.
Clement argued first, starting his presentation by stating the need for the military to have access to the best and brightest students and saying that the universities are still free to criticize any military policy they want to, even in the presence of the recruiters.
Justices Antonin Scalia and Sandra Day O’Connor, wanting to know why the military should not have to follow the schools’ non-discrimination policies, interrupted him.
“Every other employer is subject to the non-discrimination policies,” said O’Connor.
“The military is not like every other employer,” replied Clement.
“It seems to me that [the Solomon Amendment] requires more [of the universities] than other employers,” said Scalia.
Justice Stephen Breyer commented that the Solomon Amendment, in its current form, was passed for the purpose of undermining the First Amendment.
Justice Ruth Bader Ginsberg called the Vietnam-era law “highly academic” and suggested that the current law is a larger constitutional problem.
Clement agreed that there were differences, largely due to regulatory interpretation.
Congress’ right to spend money
Scalia wanted to know why the government thought the Constitution’s “spending clause” was a stronger argument for them, than to bring the whole case under Congress’ right to raise and support an army.
This began a heated exchange between Ginsberg and Clement on the use of Title VII of the 1964 Civil Rights Act, which has elements interpreted and influenced by Congress’ right to spend money, and regulate other entities with restrictions on it.
Clement said that following the Third Circuit’s logic to conclusion, the universities could, if they wanted to make an anti-military statement, make policies refusing to hire veterans.
“That example does not fit,” snapped Ginsberg.
Clement returned the fire saying it is not a stretch to apply free speech to all criticism of the military, including those who served in it or military actions like the war in Iraq.
Justice David Souter took issue with Clement’s description of what the universities have to do for the military recruiters as “incidental speech.”
“The Solomon Amendment is a response to the position taken by the law schools,” said Souter. “I know of no other reason for the Solomon Amendment.”
“Expression is the problem,” said Souter. “The law schools are taking the position on First Amendment grounds.”
“I disagree,” said Clement, suggesting that the schools could express their disagreement with the military anti-gay policies in other ways.
“How much can the law schools distance themselves from the military policy?” asked O’Connor. “Can there be signs saying ‘We don’t agree with the military’s policy on homosexuality?'”
“Yes,” replied Clement. “There’s nothing in the act to prevent that.”
Justice John Paul Stevens probed the question of whether such an arrangement was little more than “symbolic speech.”
That comment drew newly-seated Chief Justice John Roberts’ first words of the case, as he interjected, “Separate but equal,” drawing chuckles throughout the room.
Ginsberg continued to press, “What can a law school do concretely [to protest] while the recruiter is in the room?”
“Organize student protests, post signs, or add statements to email announcements to the students,” answered Clement.
Clement reserved the balance of his time for rebuttal.
“What Congress actually wants to do is squelch universities’ speech,” began Rosenkranz for the law schools. “That’s why they gave us the current version [of the Solomon Amendment].”
After an exchange with Roberts and Scalia on the schools’ moral convictions, which “lie at the heart of the First Amendment matter,” Rosenkranz was asked to explain his position relative to Hurley by Souter.
“I don’t understand the speech claims and that they are morally based,” said Souter.
“It goes to the compelled speech doctrine,” answered Rosenkranz. “Congress has engaged in the most regulation of speech possible.”
“Recruiting is all about speech,” said Rosenkranz.
There was discussion between Rosenkranz and Roberts, Ginsberg and Kennedy around whether the military’s message was “We want you to join,” or “We want you to join unless you are gay,” and whether it matters.
“No one thinks the law school is speaking for the recruiters or the employers,” said Roberts. “These are sophisticated students.”
“They [law schools] can say that they oppose [the gay ban] to everyone in the room,” said O’Connor.
“Students say they don’t believe it,” said Rosenkranz.
“They don’t believe you because you’re willing to take the money,” Roberts interjected.
Bob Jones University
Souter inquired as to what would have happened at pacifist colleges during World War II had there been a Solomon Amendment equivalent.
“What about Bob Jones University?” asked Breyer. “Because they disagree with mixing the races and may still believe in segregation. Do they have the same [First Amendment] right?”
“Yes,” said Rosenkranz. “The same right.”
Ginsberg probed at the Bob Jones angle on discrimination as it relates to free speech.
Rosenkranz replied that schools like Bob Jones assert their First Amendment rights by opting out of money associated with Titles VII and IX of the 1964 civil rights act.
“Who is compelling the actual speech?” asked Scalia, trying to get Rosenkranz to distinguish between “actual” speech and “symbolic” speech. “What expression is the university compelled to utter?”
Rosenkranz replied that the schools were required to post bulletins, host parties, and use their “career services enterprise” to promote the recruiters.
“These are not words used that are incidental to action,” said Rosenkranz.
“What about a disclaimer that says they oppose the policy?” asked Kennedy.
“So law schools shouldn’t allow recruiters from law firms if they oppose gay marriage?” Kennedy continued.
“Schools have the right to their own message,” said Rosenkranz.
A critical point along those lines was briefed by FAIR, but did not come up during arguments.
FAIR says it is part of their mission to protect students from the insults of discrimination. This is why the Solomon Amendment differs from its earlier version and the anti-war protests of the 1960s. FAIR says their mission is comparable to the Boy Scouts’ gay-excluding one that the high court upheld in Dale.
“The schools are being forced to host the government’s message,” said Rosenkranz.
“Is it the same if the university faculty disagrees with the war?” asked Scalia.
“Yes,” said Rosenkranz with regard to hosting government messages, “but a difference here is between not accepting [the message] and refusing to subsidize [it].”
“Does the whole Solomon Amendment need struck?” asked Justice John Paul Stevens.
“Yes,” said Rosenkranz, “because there is no way for this court to re-write the law.”
‘Not a compulsion’
Clement was uninterrupted during his rebuttal, where he repeated the government’s claim that the Solomon Amendment is a “funding condition, not a compulsion.”
Then he said it is more than just the military gay ban that bothers the law schools.
“The law schools are also concerned about sex and career advancement and the Iraq war,” said Clement.
“So even if Congress repeals ‘don’t ask don’t tell,’ they’ll be back with the same arguments about something else.”
Yale is still receiving federal money even though it denies recruiters access to its campus. This is under an injunction stemming from the Third Circuit ruling. The other schools have allowed the recruiters on campus because they say they can’t afford to lose the money.
Outside the court, Yale law school dean Harold Hongju Koh said, “Just change ‘gay’ to ‘black’ to see what the law schools are trying to resist.”
Koh said the problem with the recruiters is their “unless you are gay” message.
“Can you imagine them saying ‘Join the army unless you are black?'”
Koh said law schools have the moral responsibility to resist aiding and abetting discrimination.
A decision is expected by spring.