Excerpts from yesterday's Supreme Court arguments on the Solomon Act, a federal law that says colleges which receive federal money must accommodate military recruiters, based on audio provided by the Court. The case is Rumsfeld
v. Forum for Academic and Institutional Rights.
JUSTICE SANDRA DAY O'CONNOR: Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military's views? Can there be signs up at every recruitment office saying, 'Our law school doesn't agree with any discrimination against gays?' I mean they can come forward with their position on this in every recruitment office without violation of the amendment?
SOLICITOR GENERAL PAUL CLEMENT: Yes, they can. ...
JUSTICE RUTH BADER GINSBURG: What can the law faculty do to dissociate itself from, to say that `we don't tolerate discrimination of any kind?' What can the law school do concretely while the recruiter is in the room?
CLEMENT: Concretely, they could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests. ...
JUSTICE ANTHONY M. KENNEDY: You mean they could organize a student protest at the hiring interview room so that everybody jeers when the applicant comes in the door, and the school could organize that? When it's say, a job fair and all the employers are there, but then they jeer, and the school organizes a line jeering both the recruiters and the applicants, that's equal access?"
CLEMENT: I think that would be equal access. I think you have to draw a practical line here between access and allowing the speech.
JUSTICE ANTONIN SCALIA: You're not going to be an Army recruiter, are you? (Laughter in the courtroom.)
CLEMENT: I don't think the military and the Army recruiters, and I won't be one of them, but I think the Army recruiters are not worried about being confronted with speech. They're worried about actually not being allowed onto the same (campus).
ClLEMENT: It's worth remembering that the recruiting office is not the heart of First Amendment activity on campus. And if the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that's a commonsense way to accommodate the interests of the military recruiters and the First Amendment.
SCALIA: So you are saying that every time somebody gives as his reason for violating a law, that he wants to send a message that he disagrees with that law?
LAW SCHOOLS' ATTORNEY E. JOSHUA ROSENKRANZ: No your honor. Every time someone says that as a reason for refusing to host a message of an unwelcome messenger, that's a compelled speech.
JUSTICE STEPHEN BREYER: So in fact to be clear, you also think schools that are angry at the military because they're too favorable to gays in the military, they have the same right.
ROSENKRANZ: Absolutely, your honor.
BREYER: Also the same right Bob Jones University, because they disapprove of social mixing of the races.
ROSENKRANZ: If, the answer to the first hypothetical, first if that's a matter of conscience, absolutely.
BREYER: And there are a lot of people in the country they, a few anyway, may not believe in either affirmative action, they may not believe in diversity, they may not, they may even believe in racial segregation, for all I know. I hope they're not too many. But there might and those people all have the same right. If that's the case then of course, it's going to be pretty tough for the military to get people on campus. I just wonder if that's an important need, why you don't have here what I'd say is normal in the First Amendment area, that the remedy for speech you don't like is not less speech, it is more speech.
ROSENKRANZ: What Congress has done is to engage in the most viewpoint-oriented regulation of speech. The reason Congress does not, the reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law schools themselves.
CHIEF JUSTICE JOHN ROBERTS: It doesn't insist, it doesn't insist that you do anything. It says that if you want our money, you have to let our recruiters on campus. ... What about South Dakota against Dole? South Dakota had a constitutional right under the 21st Amendment to set whatever drinking age it wanted, and yet we upheld the spending-clause condition that if they accepted federal funds, they had to set their drinking age at 21.
ROSENKRANZ: Yes, your honor. And in subsequent cases, and in fact in Dole itself, this Court pointed out that all bets are off when there's a superseding constitutional right. Here we're talking about the Bill of Rights and the First Amendment.
ROBERTS: There's the right, in the Constitution, to raise a military.
KENNEDY: It seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails and advertisements that say the law school does not approve and in fact disapproves of some of the policies of some of the employers who you will meet. That's the end of it.
ROSENKRANZ: No matter what the government does, it cannot convert the career-services enterprise into a value-neutral proposition. For the law school, from its perspective, it's especially value driven.
BREYER: Speech is on their side. The government just says `Let our recruiters in.' So why isn't it sort of like, `Pay the property tax.' 'I don't want to. I hate the government. I'm withholding the money because I want to express my message.'
ROSENKRANZ: The speech is on both sides because the schools are being forced to host the government's message... . The message that the schools are hearing is, `Join the Army, but not if you're gay.' ... There's some reason in the law school's conscience or the academic institution's conscience that it wants to treat this category of employers differently from any other.
ROBERTS: And you're perfectly free to do that, if you don't take the money."
ROSENKRANZ: Your honor, Congress here is imposing a sanction which this court has treated as exactly the same as a penalty.