Should law schools be allowed to block military recruiters from campus? That's one of the first questions John Roberts will decide as a Supreme Court justice, should the Senate confirm him.
The case, called Rumsfeld v. Forum for Academic Rights, concerns the constitutionality of the Solomon Act, which mandates that law schools will lose their federal funding if they ban military recruiters. In 2003, a coalition of schools sued. Last year, the Third Circuit Court of Appeals ruled in their favor and declared the Solomon Act unconstitutional. The Supreme Court is scheduled to take up the matter in hearings beginning in mid-October.
This week, a group of law professors and students, led by George Mason Law School dean Daniel Polsby, filed an amicus brief supporting the military. The document's signers include Douglas Kmiec of Pepperdine and Robert Turner of the University of Virginia. Polsby's basic opinion about the appeals-court decision can be summarized in two words: It's bogus.
The Solomon Amendment was originally passed in the wake of the 1993 "Don't Ask, Don't Tell" policy when law schools stated that if the military were going to discriminate it would bar recruiters from campuses.
The law was weakly enforced through the 1990s. After 9/11, however, the Defense Department insisted on fuller compliance. In response, the Forum for Academic and Institutional Rights (FAIR), a law-school association, sued the Pentagon.
FAIR lawyer Josh Rosencrantz, in an interview with National Review Online, asserts that "the policy's always been unconstitutional." His association regards the act as a method of suppressing speech. "If the first amendment gives bigots the right to discriminate against gays then certainly it gives the right to right-minded academic institutions to discriminate against bigots."
The most important allegation in the consortium's suit is constitutional; it charges the government with violating the rights of law schools by "impinging on their academic freedom, freedom of speech, and freedom to associate with one another in pursuit of common objectives." FAIR additionally argues that the policy compromises the "inclusive" university messages by mandating the presence of discriminatory recruiters.
Although a New Jersey district court ruled against the plaintiffs two years ago, the Third Circuit Court of Appeals found in their favor last November. It ruled that the Solomon Act "requires law schools to express a message that is incompatible with their educational objectives and no compelling government interest has been shown to deny this freedom."
Polsby disagrees with this ruling. "This is not a free speech case -- it's a simple case of the spending clause," he tells NRO. "Congress has the right to condition federal funds on certain minimal objectives." As the brief states: "the Solomon Amendment thus is a perfectly ordinary contractual condition; no different from any that might be attached to a gift or bequest to an academic institution."
Polsby views the lawsuit as fundamentally hypocritical: "The schools are angry at Congress. They say we're not going to allow the military on campus. We like government money so much though, that we'll sue to get it."
Polsby says the foundation of the appeals-court decision, in Boy Scouts of America v. Dale, is erroneous. The ruling equates law schools with private organizations, as "expressive institutions." "Law schools aren't expressive institutions, and no one is telling them how to select their members or message," he says. "Expressive associations have a lot of privileges that no law school asserts. A law school isn't a country club." The brief notes that "if the government requires an expressive entity to accept someone as a member or spokesman, the First Amendment might thereby be offended." It asserts that providing access and resources to military recruiters is far from this.
To Polsby, the case is the latest in a long string of quarrels reflecting higher education's hostility towards the military. The brief is not a question of support for "Don't Ask, Don't Tell" -- as it says, "amici do not take any position with regards to the policy's merit." Polsby notes that "one of our goals has been overcoming the antipathy between higher education and the military." He hopes that the brief will help to ameliorate the situation.
Polsby and Andrew McBride, who wrote the brief, are hopeful about their chances. "I think the case is clear enough that it should be a unanimous decision," he says. Rosencrantz of FAIR is similarly hopeful that "we will finally be allowed to express ourselves here and no longer required to aid in an act that is reprehensible to us."
The outcome stands uncertain. This case looms in the Supreme Court's future. And it may be decided by the Court's newbie.
Anthony Paletta is the editor of the Carrollton Record at Johns Hopkins University and a Collegiate Network intern for NR in Washington, D.C.
By Anthony Paletta
Reprinted with permission from the National Review Online