Stevens tries to probe whether telling a military recruiter that he has do his interviewing at the campus of a college, as opposed to a law school, is a denial of equal access to the military. He asks whether the law school could offer recruiters a facility that was "equally effective" but perhaps not as good. Roberts * promptly quips: "Separate but equal?"
Ginsburg—repeating O'Connor's question—asks what the law faculty might do to protest a visit by a military recruiter. Clement, flashing his counterculture creds, suggests they could "put up signs on bulletin boards, give speeches, organize a student protest."
He briefly loses Kennedy. "The school can organize a protest where everyone jeers at the recruiters and the applicant? That's equal access?" the justice fumes. Clement stands firm. Yes. Cue Scalia the wiseacre: "You are not going to be a military recruiter are you?" Scalia and Kennedy don't want to allow student jeering. But Clement would permit it. "This statute gives a right to equal access," he says. After that, recruiters are on their own.
Joshua Rosenkranz represents FAIR, and he argues that the Solomon Amendment is part of a long tradition of congressional attacks on universities in response to war protests. "Congress had a law," he says. They passed a new law designed "to squelch even the most symbolic element of the law schools' resistance to the military policy."
Chief Justice John Roberts instantly shuts him down, saying the Solomon Amendment "doesn't insist that you do anything. … It says that if you want our money, you have to let our recruiters on campus." Moreover, for Roberts, this is not about speech. "This is conduct." Rosenkranz disagrees. "This is a refusal to send e-mail. This is conduct only in that they are moving molecules. … This is speech."
Kennedy repeats that you cannot "infuse anything with speech claims," adding that under FAIR's analysis "schools could exclude anyone in uniform from the cafeteria." A moment later he explodes that the law-school policy would mean "you can't get anyone from medical school for the armed forces … you can't get any chaplains … all for expressive reasons."
And O'Connor repeats her earlier argument: "The government says the law school is entirely free to tell its message, too." Rosenkranz replies that students who thought the school had an anti-discrimination policy would see the military recruiters on campus and say to the schools, "we don't believe you."
"We don't believe you because you are willing to take the government's money!" snaps Roberts, who will state several times that if the piper takes your money, he'd better play your tune. Breyer telegraphs his vote when he says that the remedy to bad speech "is not less speech. It's more speech." Breyer adds, "I can't find anywhere in the record where a student believes this speech is the school's. I can't even find a recruiter who told a student they can't join the military if they're gay."
Scalia dings Rosenkranz with a question about where there is "actual" compelled speech in this case. "Posting bulletins?" he asks. "That's symbolic!" "Words, words!" he demands. Then Breyer and Ginsburg and Stevens offer hypotheticals in which they extend FAIR's logic to extreme, hard-to-defend positions and Rosenkranz, inexplicably, adopts each extreme position in turn. Stevens asks what's objectionable about the military message here—which is "Join the Army." Souter needs to remind him that the objectionable message is not "Join the Army," but rather "Join the Army, but not if you're gay."
Suddenly one can't help but notice that all the conservative justices have gotten quiet while the liberals are taking turns beating on counsel. That can't be a good sign. Says Breyer: "Speech is on their side. They are trying to recruit!"
Clement's rebuttal is a beautiful thing. He quickly explains that no student can confuse a military recruiter's speech with the law school's. Also that any protest can be re-characterized as free speech or free association, opening the door to allowing law schools, if they so choose, to disregard bedrock federal anti-discrimination laws. It's a clever approach—painting the Solomon Amendment as an anti-discrimination law, as opposed to an aggressive counter-punch at anti-discrimination diehards. A series of culture clashes underlies this case: The Army versus the Ivies; brawn versus brain; raw politics versus political correctness. But none of that really matters. You want the truth? You can't handle the truth. The law schools have no case.