Dec. 7, 2005

The Supremes Scrutinize Solomon

Trying to anticipate the outcome of U.S. Supreme Court cases based on the content and tone of the oral arguments is risky business — the justices tend to pummel both parties in a case with questions, to test the limits of the lawyers’ positions (and their own), and the discussions often veer off on tangents, giving short shrift to the central issues in the case.

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But it was hard not to come away from Tuesday’s hourlong oral argument (audio available here) in the so-called Solomon Amendment case thinking that the justices were inclined to uphold the federal law that threatens to withhold funds from institutions that limit military recruiters’ access to campuses, which many colleges have done to protest the Defense Department’s discriminatory policies toward gay people.

Yes, the justices asked hard questions of Solicitor General Paul D. Clement, who argued the Pentagon’s position in the case known as Rumsfeld v. Forum for Academic and Institutional Rights (04-1152). Justice Ruth Bader Ginsburg and others pressed Clement to acknowledge that the law seeks not equal treatment for the Pentagon, but preferential treatment — among employers, only the military seeks to be exempted from colleges’ nondiscrimination policies, they said.

And Justice David Souter suggested that the government had a “speech problem,” in that the Defense Department, through the Solomon law, is “forcing [law schools] to underwrite your speech and to change their own message.”

But the justices, for the most part, seemed skeptical of arguments that the government is restricting the First Amendment rights of law schools and colleges by tying their receipt of federal funds to whether or not they give military recruiters equal access to their students, in violation of the institutions’ nondiscrimination policies.

The new chief justice, John G. Roberts Jr., argued that colleges can avoid the problem altogether simply by forgoing federal funds. Justice Antonin Scalia said that any trampling of colleges’ rights was more than outweighed by the “immense national importance” of the underlying aim of the law: enabling Congress to “raise and support armies.”

And several of the justices — including centrists like Justice Stephen G. Breyer — seemed troubled by the prospect that accepting the law schools’ view would open the door to many other people or institutions seeking to disobey laws because doing so would clash with their moral or ethical beliefs. This argument could be used to undermine federal laws that prohibit discrimination on the grounds of age, disability or even race — positions that the law school professors challenging the Solomon Amendment would surely oppose, the justices said.

If a university or law school disapproves of the military’s policy on military recruiters, Breyer said, “the remedy for it is not less speech, it’s more speech.”

The military recruiting issue has been contentious from the day in 1994 that Congress adopted the Solomon Amendment, named for its sponsor, the late Rep. Gerald Solomon (R-N.Y.). Lawmakers enacted the law, which initially applied only to funds from the Defense Department, because more than two dozen law schools had voted to bar military recruiters because the Pentagon’s treatment of gay servicemen and women violated the institutions’ policies barring discrimination against gay people.

Congress amended the law twice in the late 1990s in ways that generally expanded its reach, and by 1999, colleges that barred recruiters’ access to their students risked not only Defense Department funds but those from the Education, Health and Human Services, Labor and Transportation Departments, too. Another change allowed the Pentagon to deny its funds to an entire university if only one part of it, like a law school, restricted military recruiters.

College officials and the government sought compromises over the next few years, and many institutions crafted policies that gave military recruiters at least some access to their students.

But the Pentagon pushed the issue more aggressively after the attacks of September 11, 2001, sending letters to colleges saying they needed to provide the same kind of access to military recruiters as they gave to any other recruiters. Congress codified that more aggressive approach in Defense Department spending legislation last year.

That steady intensification prompted the lawsuit that FAIR, a coalition of about three dozen law schools and law school faculties, filed in 2003. In that case, a federal district court sided with the Pentagon late that year, but the U.S. Court of Appeals for the Third Circuit, in reversing the lower court last November, concluded: “The Solomon Amendment conditions funding on the law schools’ propagation, accommodation, and subsidy of the military’s recruiting, which is expression.”

In asking the Supreme Court Tuesday to overturn the Third Circuit’s decision, the Defense Department argued the Solomon Amendment neither forces colleges to adopt positions that are antithetical to their policies — since they can avoid the problem by forgoing federal funds — nor to promote the Pentagon’s views. The most contentious discussion at Tuesday’s oral argument revolved around the extent to which the law puts colleges or law schools in the position of seeming to endorse “don’t ask, don’t tell.”

In what way are colleges being compelled to speak in ways that conflict with their rights? Scalia asked E. Joshua Rosenkranz, who argued the case for FAIR. Institutions are required under Solomon to post notices about the military recruiters’ visits, to advise them on how best to contact students, and to set up the interview sessions, the lawyer said.

Scalia discounted those actions not as “actual speech” but as “symbolic speech,” (or “expressive conduct,” conduct with elements of speech) and pressed on: “What words is the university compelled to utter under this legislation?” Rosenkranz’s argument that the dissemination of literature and other activities were “not words that are incidental to the transaction” between the government and the affected students did not seem to sway Scalia.

Several justices pushed Clement to explain ways in which colleges could allow recruiters and still make plain their opposition to the Pentagon’s policy on homosexuality.

At the extreme, they got Clement to say that law school faculty members could go so far as to organize protests in which students jeered as military recruiters walked into the room without running afoul of the Solomon Amendment. (That prompted Scalia to say that perhaps the military ought not to ask Clement to do its recruiting.)

“Recruiters are not worried about being confronted by speech,” Clement said — they just want access to the best students in higher education, as other employers have. Justice Sandra Day O’Connor concluded: A law school is “entirely free to convey its message” against discrimination.

As he spoke to reporters outside the Supreme Court after the argument, Rosenkranz evaded a question about how many votes were likely to go FAIR’s way. “I never count noses,” he said. “I learned that a long time ago.”

There was no such reticence among the reporters who cover the court regularly, for what it’s worth. In the Supreme Court press room after the hearing, most of them were predicting 8 to 1 or 7 to 2 rulings in the government’s favor, with Justice Ginsburg seemingly the only one clearly in the law schools’ corner.

A ruling is expected by the end of the court’s term in July.

— Doug Lederman

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