Most Supreme Court justices back campus recruiting

By James Vicini

WASHINGTON (Reuters) – A majority of Supreme Court justices
expressed support on Tuesday for the U.S. government’s position
that universities that get federal funds must allow military
recruiters on campus, even if the schools oppose the Pentagon’s
policy on gays and lesbians.

The justices appeared likely to uphold a federal law dating
back to 1994 that allows the government to withhold money from
universities that deny military recruiters the same access to
campuses given to other employers.

Congress adopted the law after some universities sought to
restrict military recruiting to protest the Pentagon’s “Don’t
ask, don’t tell,” policy that bars openly gay individuals from
serving in the armed forces.

A coalition of law schools challenged the law and said the
Pentagon’s policy violated their own long-standing policies
against discrimination based on sexual orientation.

New Chief Justice John Roberts was among the court members
who seemed supportive of the government’s position during the
questioning of E. Joshua Rosenkranz, a New York attorney who
argued for the law schools.

A decision by the high court is expected by the end of
June.

Roberts questioned whether the law insisted on anything,
given that universities remained free to bar military
recruiters as long as they give up federal funding, which he
said they have been unwilling to do.

Referring to a university that does not want to host a
military recruiter on campus, Roberts said, “You are perfectly
free to do that if you don’t take the money.”

Justice Antonin Scalia pressed Rosenkranz on whether the
law required any actual speech, asking, “Which words are the
universities compelled to utter by this legislation?”

DISCLAIMERS, PROTESTS ALLOWED

Justice Anthony Kennedy said the universities could add a
disclaimer that their law school opposed the Pentagon’s policy
on e-mails sent to students about the dates and places for
visits by military recruiters.

Kennedy asked whether a law school could prevent a law firm
from recruiting on campus because it adopted a litigating
position opposing gay marriages.

Justice Sandra Day O’Connor said a law school could simply
inform each student that it disagreed with the message conveyed
by the military recruiters.

Justice Stephen Breyer seemed worried about whether a
university would have the same right to restrict access to
military recruiters because it opposed the Pentagon’s advocacy
of racial diversity.

Of the nine court members, Justice David Souter seemed the
most troubled by the law and what the government sought to
convey. “I thought the single message was join the Army, but
not if you are gay,” he said.

Solicitor General Paul Clement of the Justice Department
said that, using the universities’ logic, limits on military
recruiting could be adopted if a school opposed the war in Iraq
or in Afghanistan. “I think there is no limit on the (law
schools’) argument,” he said.

He defended the law and said, “It allows the military a
fair shot at recruiting the best and the brightest.”

Clement said universities remained free to criticize the
Pentagon’s policy and could even organize protests and put up
signs outside the recruiting room stating that the law school
disagreed with the Pentagon’s policy.

The Supreme Court agreed to hear the government’s appeal
after a U.S. appeals court in Philadelphia ruled the law could
not be enforced because it infringed on the constitutional
free-speech rights of the universities.