Less than a week after it heard arguments in an abortion notification case, the US Supreme Court Tuesday takes up another hot-button issue in the nation's culture wars. This time it involves law-school protests designed to end discrimination against gays in the military.
At the center of the legal showdown: to what extent military recruiters should have access to law school campuses. The case involves conflicting conceptions of free speech. It also could erode some civil rights laws, which use federal funding to encourage nondiscrimination.
On one side of the current case are a group of law professors and law schools seeking equal treatment of gays interested in serving the nation as members of the armed forces. In protest of the Pentagon's "don't ask, don't tell" policy banning openly gay individuals from the military, the law schools restricted military recruiters from fully participating in school-sponsored employment events.
Military recruiters could still come to campuses, but the law schools' employment placement offices would not assist them. The message was that the schools would not abet military discrimination against some of their own students.
Congress and the Pentagon responded to the law schools' restrictions by passing the Solomon Amendment. It threatens to cut off federal funding to any college or university that does not provide military recruiters the same access to law students as it does to any other potential employer.
Such a sanction would cost Yale and Harvard universities $300 million a year each in lost federal grants and contracts, according to briefs in the case. New York University would lose $130 million. Overall, universities receive nearly $35 billion a year in federal funding.
Concerned about the potential impact, the law schools and law professors formed the Forum for Academic and Institutional Rights and filed suit against Defense Secretary Donald Rumsfeld and other government officials.
Rumsfeld v. FAIR is significant because it involves Congress's constitutional authority to raise and support American armed forces at a time of national peril. It also pits Congress's constitutional power to use federal funding as an incentive against the First Amendment right of law schools and law professors to wage protests without facing massive government coercion and retaliation.
Government lawyers argue that the Solomon Amendment is not a direct command that law schools abandon their protests against military recruiters. It is merely a common-sense condition upon which any donor would insist, they say.
"The United States makes available substantial federal funding that assists in the education of students, and in return seeks only the same opportunity to recruit those students that is extended to other employers," writes Solicitor General Paul Clement in his brief to the court.
In effect, the government is placing a price tag on the law school protests. Continue the protests and forfeit the money, or accept the money and allow military recruiters equal access.
Lawyers for the law schools say this demand amounts to unconstitutional government-coerced speech. If the law school's policy is to only deal with those recruiters who sign a nondiscrimination pledge, the government's condition for receipt of federal funding is a demand not for equal treatment of recruiters but for exceptional treatment for a discriminatory employer.
"It is a demand that a law school accord the military 'most-favored-recruiter' status, even as the recruiters discriminate against the school's own students," writes E. Joshua Rosenkranz in his brief on behalf of the law schools.
In addition to the free-speech implications, the case is also being closely watched because how the high court resolves the dispute could undercut civil rights laws. Several statutes rely on the threat to withdraw federal funding as leverage to encourage recipients not to discriminate on the basis of race, gender, age, or disability, among others. A broad ruling in favor of the law schools could place some of those laws in constitutional doubt, analysts say.
The law schools' First Amendment case is weak, says Daniel Polsby, dean of George Mason University School of Law. He says the Solomon Amendment is a regulation of behavior, not speech. "The government doesn't care about what positions anyone is taking. The Solomon Amendment leaves the schools free to teach what they want to teach, it leaves the professors free to say what they want to say," Professor Polsby says. "All it says is we don't want you to Jim Crow our recruiters anymore. Let them in the same way you let in hundreds of other recruiters and treat them the same way."
Yale Law School Professor William Eskridge disagrees. He says his school's stand against discrimination sends an important message to gay students on campus that they are fully accepted members of the Yale community. The Solomon Amendment undermines that message, he says.
He says conditioning the entire university's receipt of $300 million in federal funding upon the actions of the law school is like withholding someone's Medicare payment because of what that person's sister says about the government.