Dec. 6, 2005 — -- Every year, recruiters around the country descend on law school campuses to lure graduates into the working world. While most potential employers are subject to the schools' anti-discrimination hiring policies, the U.S. military is not.
So while the law schools may object to the military's policy excluding gays from serving openly, federal legislation requires that the schools give the military equal access to students in exchange for federal funds.
Today at the Supreme Court, lawyers for faculty at some of the country's top law schools challenged the constitutionality of that legislation, known as the Solomon Amendment. Passed in 1994, the amendment affects nearly $35 billion in federal funds given to universities across the country, impacting everything from medical research to scientific breakthroughs.
The law schools in the case, Rumsfeld v. FAIR, argue that their right to free speech to protest the military's policy is being violated, since doing so could jeopardize their receipt of federal funds. Joshua Rosenkranz, arguing for the law schools, told the justices, "This is a refusal to disseminate the messages of the military recruiters."
But the government responded that the Solomon Amendment is only meant to give the military equal access to the top students at schools that accept federal support. Arguing for the government, Solicitor General Paul Clement said, "That opportunity allows the military a fair shot at recruiting the best and the brightest for the military's critical and vital mission."
Clement also said that the law does not infringe upon the law schools' free speech, since they are free to protest once the military recruiters are on campus. Justice Sandra Day O'Connor seemed to agree, saying, "The government takes the position that the law school is entirely free to convey its message" during the recruiting visits.
But Rosenkranz argued, "The message that the schools are hearing is that 'Join the Army but not if you're gay.'"
Other justices also were skeptical of the law schools' argument. Chief Justice John Roberts noted that the schools are free to bar recruiters at the price of giving up their federal funding. "It [the law] says 'if you want our money, you have to allow our recruiters on campus,'" Roberts said. The chief justice also pointed out that there is a constitutional right for the government to raise an army.
The Pentagon says the recruiting it conducts at 200 law schools around the country is critical, yielding nearly 400 new judge advocate generals, or JAGs, per year.
"Anytime that military recruiters are denied a chance to carry out the recruitment for the all-volunteer force, then the nation's choice to have a volunteer military is directly affected," said Bill Carr, deputy undersecretary of defense for military personnel policy. "It really is that important."
Only three law schools -- New York Law School, Vermont Law School and William Mitchell College of Law -- have had their federal funding withheld for physically barring military recruiters from campus. These small law schools have suffered little financial impact as a result.
However, larger schools linked to research universities like Yale and Harvard law schools would stand to lose $300 million each in federal funding if the military ever denied them funding under the law.
For William Eskridge, a Yale Law School professor who brought one of his classes to the court today, the issue hits home on many fronts. He is openly gay, as well as a leading spokesman among the several dozen Yale Law School faculty who oppose the law. Eskridge says any cutoff of funds would resonate far beyond the law school at Yale.
"The federal money that comes to universities like Yale is particularly critical for the medical research and science research projects that all the major research universities engage in," Eskridge said. "The losers would certainly be universities like Yale, but the big losers would be the American people."
One of his students, Alex Berlin, said the military is further damaging its recruiting prospects by pursuing this case. "I think that the way the government is going about this in almost a sort of petty and punitive way, I think it makes people not want to work for the military," Berlin said.
Another Yale law student disagreed. Roman Martinez said he feels the military does deserve exceptional treatment. "I think that especially in a time of war, that Yale has an obligation to stand behind the people who keep us free and to help the military do its job."
Outside the Supreme Court, there was much debate. William Pendley, attorney for Rep. Richard Pombo, R-Calif., who co-sponsored the Solomon Amendment, argued that recruitment is essential given the demands on the military. "I believe the military has a desperate need today for good JAG officers," Pendley said.
But Bert Leatherman, a gay law student at NYU Law School in line waiting for tickets to today's proceedings, said he disagrees the military should be given access at any cost. Coming from a military family, he says he has great respect for the military but is unhappy with the law.
"It really hurts me that my own government is forcing universities to allow the military to come on campus and discriminate against me," Leatherman said.
Supporters of the Solomon Amendment believe that today's argument is just the latest in a history of attempts by law professors to keep the military off campus. The law school faculty members involved in the case argue that they're not anti-military -- they're just anti-discrimination. A tough question for the justices will be where to draw the line. A decision is expected this spring.