Colleges: Justices seem wary of military recruitment ban
The Supreme Court had tough questions earlier this week for law schools seeking to ban military recruiters because the Pentagon's "don't ask, don't tell" policy on gays conflicts with their campus nondiscrimination rules.
At issue in the case, Rumsfeld v. Forum for Academic and Institutional Rights, was the constitutionality of the Solomon Amendment, a decade-old law that allows Congress to withhold federal dollars from colleges and universities that deny military recruiters equal access to their campuses. The statue was challenged by FAIR, an organization of 38 law schools, and supported in amicus briefs by the American Association of University Professors as well as Harvard, Yale, and several other schools.
In oral arguments, the justices defended the government's constitutional power to raise an army and appeared wary of the slippery slope that could result if colleges were allowed to bar recruiters because they disagreed with a military policy.
"It's no stretch of the imagination to think that the principle that's being articulated by respondents would stretch well beyond simply a direct antidiscrimination motive," said Solicitor General Paul Clement, who argued the case of the government. The free-speech claims being made by FAIR, he said, could extend to any basis for criticizing the military, including disagreements with the wars in Iraq and Afghanistan.
Joshua Rosenkranz, the attorney for FAIR, contended that the amendment stifled the schools' First Amendment rights. "What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message."
But the government argued that free speech was allowed, as long as recruiters could have equal access to the best and brightest students. When Clement said schools could organize demonstrations against military recruiters and still satisfy the "equal access" requirement in the law, Justice Antonin Scalia quipped, "You're not going to be an Army recruiter, are you?"
Chief Justice John G. Roberts said colleges that disagreed with hosting military recruiters could easily resolve their moral qualms: "Don't take the money."