The Supreme Court
appeared ready Tuesday to uphold a law that says
colleges cannot turn away military recruiters in protest of
the Pentagon's policy on out gay service
members if the universities also want to receive
federal money. Chief Justice John Roberts said schools
unhappy with the "don't ask, don't tell" policy have a
simple solution: turn down federal cash.
And Justice
Sandra Day O'Connor, who is retiring, said colleges can post
disclaimers on campus noting their objections to military
policy.
Law school
campuses have become the latest battleground over the policy
allowing gay men and lesbians to serve in the military only
if they keep their sexual orientation to themselves.
Solicitor General Paul Clement said that when the
government picks up the tab for things like research
and education grants, the military also is entitled to
demand "a fair shot" in terms of equal access for its
recruiters to a university's "best and brightest."
Clement said the military is receiving nothing more
than any other donor would expect.
A few justices,
including David Souter, worried that the free speech
rights of law schools could be hindered by the congressional
action of tying funding to military recruiters'
access. "The law schools are taking a position on
First Amendment grounds, and that position is in
interference with military recruiting--no question
about it," Souter said. More court members seemed
concerned about military recruitment in the post-9/11
world. Federal financial support of colleges tops $35
billion a year, and many college leaders say they could not
forgo that money. Immediately after the argument, the
Supreme Court released an audio tape to news
organizations because of interest in the case. Cameras
are not allowed in court.
About a half
dozen members of the antigay Topeka, Kan.-based
Westboro Baptist Church protested outside the high
court, waving signs with slogans like "America is
doomed" and yelling at reporters and passersby in
front of the court before the argument. They dragged behind
them U.S. flags tied around their ankles as they paced the
rain-drenched sidewalk. "The Supreme Court shouldn't
even have to debate about this," said Rebekah
Phelps-Roper, 18.
Some students
camped out overnight to get seats for the argument. Dan
Noble, a 26-year-old gay student at Yale Law School,
said, "You feel discriminated against when some
recruiters will interview your fellow students but
won't interview you."
Many law schools
forbid the participation of recruiters from public
agencies and private companies that have discriminatory
policies. Law schools have "a Hobson's choice: Either
the university must forsake millions of dollars of
federal funds largely unrelated to the law school, or
the law school must abandon its commitment to fight
discrimination," justices were told in a filing by the
Association of American Law Schools.
The federal law,
known as the Solomon Amendment, after its first
congressional sponsor, mandates that universities, including
their law and medical schools and other branches, give
the military the same access as other recruiters or
forfeit money from federal agencies like the
Education, Labor, and Transportation departments.
Dozens of groups
have filed briefs on both sides of the case, the first
gay-rights related appeal since a contentious 2003 Supreme
Court ruling that struck down laws criminalizing gay
sex. The latest case stems from a lawsuit against the
Pentagon by a group of law schools and professors
claiming their free-speech rights are being violated on
grounds they are forced to associate with military
recruiters or promote their campus appearances.
Free-speech cases are often divisive at the court. If Samuel
Alito, President Bush's nominee to succeed O'Connor, is
confirmed by the Senate before the case is decided
sometime next year, he could be called on to break any
tie vote.
A panel of the
Philadelphia-based third U.S. circuit court of appeals
found it was reasonably likely that the law violated free
speech rights. Alito serves on that appeals court but
was not involved in the case. The case is Rumsfeld
v. Forum for Academic and Institutional
Rights. (AP)
