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.

click to expand
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. Follow her on Twitter.

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.

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.

Correction, Dec. 8, 2005: The article originally attributed this quote to Antonin Scalia. So much for the author's view-obstructed voice-recognition abilities. Return to the corrected sentence.