Court Hears Campus Recruiting Case

The Supreme Court will decide whether universities that accept federal money also have to open their doors to U.S. military recruiters.

The Bush administration is making the case for military recruiters on America's college campuses, even at schools that don't want them because of the Pentagon's policy on gays.

Solicitor General Paul Clement argues that when the government picks up the tab for things like research and education grants, the military also is entitled to demand "a fair shot" in terms of equal access for its recruiters to a university's "best and brightest."

And early signs suggest the Supreme Court may be ready to take this position. New Chief Justice John Roberts said schools unhappy with the "don't ask, don't tell" policy have a simple solution: turn down federal cash.

And Justice Sandra Day O'Connor, who is retiring, said colleges can post disclaimers on campus noting their objections to military policy.

However, a few justices, including David Souter, worried that the free speech rights of law schools could be hindered by Congress' action of tying funding to military recruiters' access.

"The law schools are taking a position on First Amendment grounds, and that position is in interference with military recruiting, no question about it," Souter said.

The implications of the ruling, not expected for several months after Tuesday's arguments, would extend beyond military recruitment. Other strings could be attached when federal cash is doled out.

Federal financial support of colleges tops $35 billion a year, and many college leaders say they could not forgo that money.

Law school campuses have become the latest battleground over the "don't ask, don't tell" policy, which allows gay men and women to serve in the military only if they keep their sexual orientation to themselves.

CBS News correspondent Randall Pinkston reports this conflicts with the policies of many law schools, which forbid the participation of recruiters from public agencies and private companies that have discriminatory policies.

"What we are saying is we have a first amendment right not to have our resources go to discriminate against our own students," says Kent Greenfield, founder of Forum for Academic and Institutional Rights, the group, which challenged the Solomon Amendment.

Law schools have "a Hobson's choice: Either the university must forsake millions of dollars of federal funds largely unrelated to the law school, or the law school must abandon its commitment to fight discrimination," justices were told in a filing by the Association of American Law Schools.

But, Joseph Zengerle, a professor at George Mason University School of Law, told CBS News he believes if recruiters don't come to college campuses, students will ultimately be hurt.

"It's going to hurt the students who are looking for placement opportunities and job opportunities on law school campuses," Zengerle says.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities, including their law and medical schools and other branches, give the military the same access as other recruiters or forfeit money from federal agencies like the Education, Labor and Transportation departments.

The latest case stems from a lawsuit against the Pentagon by a group of law schools and professors claiming their free-speech rights are being violated, on grounds they are forced to associate with military recruiters or promote their campus appearances.

Free-speech cases are often divisive at the court. If Samuel Alito, President Bush's nominee to succeed retiring Justice Sandra Day O'Connor, is confirmed by the Senate before the case is decided he could be called on to break any tie vote.

A panel of the Philadelphia-based 3rd U.S. Circuit Court of Appeals found it was reasonably likely that the law violated free speech rights. Alito serves on that appeals court but was not involved in the case. The case is Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152.

Dozens of groups have filed briefs on both sides of the case, the first gay-rights related appeal since a contentious 2003 Supreme Court ruling that struck down laws criminalizing gay sex.

About a half dozen supporters of the law, all members of the same Topeka, Kan., family, waved signs, with slogans like "America is Doomed," and yelled at reporters and passers-by in front of the court before the argument. They dragged behind them U.S. flags tied around their ankles as they paced the wet sidewalk.