High court hears campus recruiting case

WASHINGTON -- With billions in federal money at stake, a spirited debate unfolded yesterday at the Supreme Court over the government's contention that it can withhold funding from colleges that turn away military recruiters to protest the Pentagon's ''don't ask, don't tell" rule for gays and lesbians.

Lawyers for a group of law schools told the justices that colleges have a free-speech right to exclude the military from campuses, while the government said military recruiters should be given the same on-campus access to students as private law firms seeking new employees.

The closely-watched case turns on issues of gay rights, free speech, academic freedom, and national security.

Chief Justice John G. Roberts Jr. questioned whether anyone would believe a law school espoused the views of the military just because it permitted recruiters on campus. Justice Stephen Breyer suggested the schools were acting like reluctant taxpayers -- willing to take government benefits and not willing to pay for them.

But Justice David Souter voiced concern that the law, known as the Solomon Amendment, was forcing universities ''in effect to underwrite [the military's] speech" and that the measure's sole purpose was to restrict the schools from expressing their views.

''The Solomon Amendment is directed or is responsive entirely to positions taken by law schools on, among other things, First Amendment expressive grounds," he said. ''So if we are going to address the Solomon Amendment, I think we are addressing an exclusively First Amendment speech expression issue."

Solicitor General Paul Clement, arguing the case for the Bush administration, said, ''The reason for the Solomon Amendment is to ensure that military recruiters in fact have an equal opportunity to recruit the same pool of individuals."

Souter replied that while previous legislation had sought to bar draft-card burning, thereby burdening speech incidentally, the Solomon Amendment was designed to address only speech.

The case -- Rumsfeld v. Forum for Academic and Institutional Rights, or FAIR -- arrived at the Supreme Court more than a decade after Congress passed the Solomon Amendment, named for its original sponsor, the late US representative Gerald Solomon. The law permits the government to withhold funding from universities whose law schools refuse to allow military recruiters on their campuses. It been expanded in recent years, particularly since the attacks of Sept. 11, 2001.

At issue is the $35 billion in federal funds annually doled out to colleges and universities.

The law mandates that even if only a university's law school denies access to military recruiters, the whole university is cut off from federal funding.

In her questions, Justice Sandra Day O'Connor focused on the practicalities of the law's enforcement, asking what sort of notices the law schools might post at their recruitment offices to make clear their stance opposing the military's position on gays and lesbians.

''Can [the law schools] come forward with their position on this in every recruitment office without violation of the amendment?" O'Connor asked.

Clement said they could, but added that there is a ''line."

Later, Roberts returned to the point, as the lawyer for FAIR argued that signs posted in recruitment offices were not enough to make clear the law school's opposition to the military policy on gays in the military.

''The answer of the students is: 'We don't believe you,' " E. Joshua Rosenkranz, representing FAIR, told the court.

Roberts retorted, ''The reason they don't believe you is because you're willing to take the money. What you're saying is ''This is a message we believe in strongly, but we don't believe in it to . . . $100 million.' "

The plaintiff, FAIR, is a consortium of 38 law schools and law faculties who argue that the Solomon Amendment forces them to welcome a group to campus that actively discriminates against gays and lesbians, thereby forcing them to promote a message they do not endorse. FAIR was founded by Kent Greenfield, a Boston College law professor.

Clement said the schools remain free to decline federal funds.

FAIR filed its lawsuit in 2003. A US district court sided with the government, but the US Court of Appeals for the Third Circuit agreed with law schools last year. Congress, reacting to the appellate court decision, reiterated its support for the Solomon Amendment this year.

The case is considered important in the body of First Amendment law and will have wide impact in New England, home to a number of leading law schools.