Law schools against free speech.

Law schools against free speech.

Law schools against free speech.

Oral argument from the court.
Dec. 6 2005 6:07 PM

Law Schools Against Free Speech

The Supreme Court considers military recruitment on campus.

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Law under order

Anyone who has attended law school will attest to the lunacy of interview season, wherein law students trade in jeans and sweatshirts for rumpled navy suits and heroically endure an uneasy session with an uneasy recruiter in an airless room. Imagine how much worse it might be when that recruiter hails from the U.S. Army, the student is met by jeers and catcalls, and the law school has posted a sign outside the interview reading: "Welcome to Satan's Lair."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Well, that, my friends, is the future of military recruitment on campus.


Rumsfeld v. Forum for Academic and Institutional Rights pits against each other two visions of higher education. On the one hand, you have the federal government, which sees colleges, and specifically law schools, as fertile ground for Judge Advocate General recruitment and resents any intrusion as pointy-headed anti-Army hostility. On the other hand, you have the military's nasty little "don't ask, don't tell" policy for gay soldiers—a policy that undermines many law schools' commitment to nondiscrimination. And in the middle of it all, you have the 1994 Solomon Amendment (named for its sponsor, Rep. Gerald Solomon), which withholds Defense Department funds from any university that denies military recruiters access to campus. The amendment's co-sponsor, Rep. Richard Pombo of California, urged his colleagues to vote to "send a message over the wall of the ivory tower of higher education" and warned that "starry-eyed idealism comes with a price."

I liked this speech better when Jack Nicholson delivered it in A Few Good Men: "You can't handle the truth!"

In its later iterations, the Solomon Amendment expanded to include university funding from more federal agencies, and Congress made clear that a whole university could be on the hook for a law school's decision to host military interviews in janitorial closets. FAIR, a coalition of law schools, brought a suit challenging the constitutionality of the Solomon Amendment, claiming it violates the schools' rights to free speech and association, notably, the right to exclude groups that discriminate based on sexual orientation. The schools stand to lose federal funding to the tune of $35 billion. FAIR struck out in the district court but won before a divided panel of the 3rd Circuit Court of Appeals. It seems the Supreme Court granted review principally to mock the 3rd Circuit in a very public fashion.

Solicitor General Paul Clement represents the government today, as usual, and he just seems to get better and better. (It certainly helps when, going into the argument, the bet is whether you'll win 8-1 or 9-0.) Clement briefly runs afoul of some of the justices when he claims that the military seeks only to be treated "like every other employer." Sandra Day O'Connor and Anthony Kennedy quickly point out that "every other employer" that discriminates against gay candidates is barred from campus.

Justice Stephen Breyer cites one of the amicus briefs in the case that suggests that the law schools have not discriminated against military recruiters, but rather have adopted an evenhanded policy from which the military seeks an exemption. For a few moments several justices are in the thrall of the amicus brief, until Scalia reminds Clement that the Constitution grants Congress the power "to raise and support armies." Scalia wonders why that isn't the end of this case.

Clement says that other acts of Congress, including anti-discrimination laws such as Title VII of the Civil Rights Act, also encroach on "associational interests." If you extend FAIR's logic, he points out, schools could refuse to hire veterans and justify it as a war protest. Justice Ruth Bader Ginsburg says such an action would be "far fetched," given that the schools' policy "is to teach equality." Clement's rejoinder is that it hardly teaches equality to include homosexuals but exclude the military. He reminds the court that "NYU for three years had a policy of excluding recruiters from the state of Colorado" because of its anti-gay amendments. NYU wanted to exclude seal clubbers, too, but they all applied to Harvard.

Justice David Souter, who seems to take FAIR's arguments more seriously than most of his colleagues, tells Clement that he is "still left with a speech problem. You are forcing [the schools] to underwrite your speech and forcing them to change their message." Clement says there is no speech claim here, characterizing recruitment not as "speech activity, but commercial activity." At which point Scalia interjects that this commercial activity also "happens to be specifically authorized by the Constitution."

Souter again attempts to characterize the Solomon Amendment as having an "expressive objective"—that is, barring law schools from expressing their support for equal rights. Scalia wonders whether you can "convert any law into a law attacking the First Amendment by saying the reason you are disobeying it is to protest the war." O'Connor signals why she'll be voting for the military by asking: "Does the Solomon Amendment pose any restriction on the extent to which a law school can distance themselves from the military discrimination, with signs at every recruitment office saying 'our law school doesn't agree with any discrimination against gays?' " Or "Welcome to Satan's Lair," in the room where the military is interviewing. Clement says law schools can protest in any way that falls short of a denial of access.