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The US Supreme Court hears arguments today in a case with huge symbolic significance for the military, for academia and for gays. At issue is the constitutionality of a federal law which requires that federal funds be taken away from a university if even one of its schools or departments denies equal access to military recruiters. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG reporting:
Today's case centers on how the military's don't ask, don't tell policy conflicts with university nondiscrimination policies; in particular, law school policies. For nearly three decades, most law schools have required that all recruiters seeking to use the schools' career services facilities pledge in writing that they don't discriminate on the basis of race, gender, religion or sexual orientation.
In 1990, the Association of American Law Schools unanimously adopted a policy barring recruiters who failed to sign the non-discrimination pledge. Four years later, Congress enacted a law directing the Department of Defense to withhold funds from any school that restricted military recruitment. As a result, some law schools gave up their federal funds, but the amounts were small, typically less than $100,000. And most law schools continued to allow military recruiters on campus, though the schools limited the administrative support they provided.
Then in 2001 came the Bush administration and 9/11. The Department of Defense told the law schools that if military recruiters were not treated identically to other recruiters, treated equally in all respects, the whole university would lose all its federal funding, and that amounted to hundreds of millions of dollars at big universities involving, for instance, large research grants to medical schools on the same campuses. The Bush administration's ratcheted-up policy was then enacted into law by Congress, challenged in the lower courts, struck down and that ruling appealed to the US Supreme Court. For the military, equal access in recruiting is not a question of discrimination. Four-Star Admiral Archie Clemins commanded the Pacific Fleet before his retirement.
Admiral ARCHIE CLEMINS: I did not make the don't ask, don't tell law. But it's a law of the land and the military's obligated to follow that law.
TOTENBERG: And recruitment, he notes, is the life's blood of the nation's defense.
Adm. CLEMINS: All the lawyers in the military come from some private law school 'cause the government has no law school.
TOTENBERG: To the law schools, it's not a question of equal access since no other employer who discriminates is given any access.
Mr. JOSHUA ROSENKRANZ (Attorney): The government is demanding preferred access.
TOTENBERG: Joshua Rosenkranz will argue in the Supreme Court today on behalf of law schools challenging the government's equal access requirement.
Mr. ROSENKRANZ: It's demanding what we call most favored recruiter status. They're saying, `We will discriminate against your students and you will help us do it.'
TOTENBERG: Former Army Undersecretary Joseph Reeder, who served in the Clinton administration, counters that the law schools seem to think they can exempt themselves from the country's defense.
Mr. JOSEPH REEDER (Former US Army Undersecretary): The message that we send to the people, the kids that we've got in combat, that some institutions are just too good, that they are not going to allow military to recruit on their campuses, is, for me, a pernicious and very disturbing thought.
TOTENBERG: In fact, most schools have long since agreed to let military recruiters on campus. They want to draw the line, though, at how much administrative assistance they give, how their personnel will be used to carry the military's recruitment message. The military has insisted that everything be the same as it is for every other recruiter, that the law school personnel, not anyone else, schedule appointments, distribute literature, and that the schools reserve places for the military at off-campus job fairs paid for by the law schools. Yale Law School Dean Harold Koh.
Dean HAROLD KOH (Yale Law School): We don't bar anyone from coming in, but what we won't do is we won't give assistance to people who are indicating that it's their intent to discriminate in their hiring practices. We don't think that an academic institution should be conscripted into the exercise of discrimination.
TOTENBERG: Faced with losing all their federal funding, though, most universities have caved under protest. Some like Yale have gone to court and won, so far at least. The case being heard today was brought by a group calling itself the Forum for Academic and Institutional Rights, FAIR, which also challenged the law as an unconstitutional infringement of the schools' right to free speech and association. A federal appeals court in Philadelphia agreed. The appeals court, in an act of supreme irony, based its decision on the US Supreme Court's recent rulings allowing discrimination against homosexuals. In one case, the high court upheld the right of the Boy Scouts to exclude gay scoutmasters in New Jersey even though state law barred discrimination based on sexual orientation. And in another case, the court upheld the rights of St. Patrick Day Parade organizers to bar homosexuals from marching in the parade. Again, Yale's Dean Koh.
Dean KOH: The Supreme Court has said that institutions have a right not to associate with points of view that they find offensive. We think that recruiting practices here prevent loyal Americans from serving their own government in the Armed Forces at the time when the Armed Forces need good lawyers.
Mr. REEDER: Boy Scouts are just night and day different.
TOTENBERG: Former Army Undersecretary Reeder.
Mr. REEDER: The role of a Boy Scout troop leader is so fundamentally different than that of a one-time-a-year military recruiter that it's just ludicrous to equate the two.
TOTENBERG: Moreover, the government maintains that mandating equal access for the military involves not speech but conduct. It does not affect the law schools' internal composition. The faculty members, Reeder notes, can protest anytime they want.
Mr. REEDER: If they want to hold up placards, that is First Amendment stuff. You know, we're talking about big boys and girls. To treat lawyers or, for heaven's sakes, law professors as that sensitive and incapable of being able to express themselves effectively, forcefully merely because a recruiter has been given equal access, what really is at stake here, I suspect rather, is that they are trying to change policy.
TOTENBERG: The don't ask, don't tell policy, and law school faculty members freely admit that. Joshua Rosenkranz, who represents FAIR, says that when NYU was forced to aid military recruiters on its campus where he taught, it tore the place apart.
Mr. ROSENKRANZ: You would see the students pleaing with deans and faculty, `Don't let them treat us this way,' saying, `What price are you putting on your anti-discrimination policy?'
TOTENBERG: The government's ultimate rebuttal is that no law school has to do anything. Schools can even keep military recruiters off campus entirely, but then there'll be no federal money for anything at the university or, as the legal maxim goes: `He who pays the piper calls the tune.' The schools counter that the law imposes unconstitutional conditions, that the strings the Congress has attached are unconstitutional. Again, Josh Rosenkranz.
Mr. ROSENKRANZ: The doctrine of unconstitutional conditions says that the government is allowed to tie strings in certain circumstances to decide how its money is going to be spent, but it does not get to bind the speaker.
TOTENBERG: In short, the schools contend that the government cannot force an institution to carry the military's message by cutting off all funding to a whole university when only a small part of that university has defied the government's command. `If the government can attach those kinds of strings,' the schools say, `what will stop it next from cutting off funds to schools that do stem cell research or perform abortions at university hospitals?' The Supreme Court, however, has ruled in the past that the government may cut off all aid to a university if it discriminates based on race or gender in any program. So what makes this any different? Again, Yale's Dean Koh.
Dean KOH: I think this case is about the limits to that principle. Certainly, the US government has a compelling governmental interest in using the tools that are available to prevent discrimination based on race. But do they have a compelling governmental interest to use those same tools to enforce deliberate discrimination? There is no compelling governmental interest favoring the kind of discrimination that they're doing.
TOTENBERG: The government responds that there is a compelling interest articulated in the Constitution. The Constitution, after all, gives Congress the power to raise armies to secure the national defense. Nina Totenberg, NPR News, Washington.
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