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Slate's Jurisprudence: Challenging 'Don't Ask, Don't Tell'


This is DAY TO DAY. I'm Madeleine Brand.

For the second time in two weeks, today we are hearing the sound of the nation's highest court.

(Soundbite of Supreme Court proceeding)

Unidentified Man: We'll hear argument first this morning in Rumsfeld vs. Forum for Academic and Institutional Rights.

BRAND: The Supreme Court today took up the question of whether the federal government can deny money to universities whose law schools don't allow military recruiters on campus. The law schools in question have policies outlying discrimination against gays and lesbians and the military as we know doesn't ask, doesn't tell and doesn't like being barred from these campuses. Joining us to discuss the case is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for us here at DAY TO DAY. She was inside the court today for today's arguments.

And, Dahlia, tell us more about this conflict. The federal money in question, is it being withheld just from the law schools or from the bigger universities?


Well, Madeleine, I think, first of all, they'd object to the use of the word `withheld.' They would say condition. In other words, `We're not taking it away. We're just saying you need to follow our condition. Don't treat our recruiters badly. Let them come on campus and be treated like other recruiters and your money is safe.' But, yes, the answer to your big question is it's the whole school that is at risk including, say, funding for the med school for experimental work or for research. So the implications are much broader than simply the law school.

BRAND: And we're talking hundreds of millions of dollars.

LITHWICK: Yes, we are.

BRAND: And what is the government's argument about why it's appropriate for them to, as you say, condition this money?

LITHWICK: Well, again, they say if you pay the piper, you name the tune. And if the law schools and universities want to take their money, then they will follow their policies. The government really made a big point today that we're not talking about any random government policy; we're talking about military recruiting which is crucial particularly at wartime and, as Justice Antonin Scalia pointed out, is a constitutional right in and of itself for the government to raise armies. So they're saying students are not confused. Students don't think that this `don't ask, don't tell' message is a message that the law school is transmitting. They understand it's the military's policy and they can separate it from the law school's message.

BRAND: And, Dahlia, we have some tape from that argument. Can you set it up for us?

LITHWICK: Essentially, this is just Justice Breyer at the very beginning, and he's questioning the government's side in this case.

(Soundbite of Supreme Court proceeding)

Justice STEPHEN BREYER: The constitutional argument, I guess, is: Does the Constitution require access? Does it permit a statute which says you have to give access to the military when you wouldn't give access to any other employer?

BRAND: And I understand the law schools are arguing, `Well, you know, we have a right to free speech, so we have a right to do what we want with this.'

LITHWICK: Well, they're saying that it is a core belief, a core message, of law schools that, `We don't believe in discrimination, that we have these anti-discrimination policies, we don't allow other recruiters to come on campus if they discriminate based on sexual orientation. Why should we allow the Army to come and do that and offend our students? Why would we carry a message we find abhorrent?'

BRAND: And could you tell from the questioning today which way the justices were leaning?

LITHWICK: You really could today, Madeleine. It did not look good for the law school's side of the argument. I would say the great majority of the court was sympathetic either to the claims that, `Look, this is a military we're raising,' that this is really not speech at all what the law school is talking about. It's something that sounds like speech or sounds like the right to free association, but really it just doesn't come under anything that is a core, constitutionally protected value. Even the more liberal justices like Justice Breyer sounded like they were very concerned that if law schools could do this, they could, in fact, turn around and get rid of other civil rights laws that protect students based on race and gender. So even the most liberal justices today just did not seem to be willing to go where the law school wanted to take them.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for us here at DAY TO DAY.

Thank you, Dahlia.

LITHWICK: My pleasure, Madeleine. Transcript provided by NPR, Copyright NPR.