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With Chief Justice John Roberts Jr. leading the way, the Supreme Court on Tuesday seemed poised to uphold a federal law that requires law schools to give equal campus access to military recruiters as a condition of receiving federal funds. In oral arguments in the case Rumsfeld v. Forum for Academic and Institutional Rights, lawyer E. Joshua Rosenkranz of the New York office of Heller Ehrman attacked the law on First Amendment grounds as a form of compelled speech requiring law schools to adopt the message “Join the Army, but not if you’re gay.” But his arguments generated little sympathy from justices across the spectrum, who seemed swayed by Solicitor General Paul Clement’s argument that the law is needed to enable the military to recruit “the best and the brightest” into the armed services. Since 1990, the Association of American Law Schools has had a formal policy against allowing law students to be recruited by employers who discriminate on the basis of sexual orientation. Those schools’ “refusal to send the message of the military” deserves First Amendment protection, Rosenkranz asserted. The Forum for Academic and Institutional Rights (FAIR) is a coalition of more than 20 law schools and faculties, including Georgetown University Law Center, where Justice Ruth Bader Ginsburg’s husband, Martin, is a professor. She has not recused. The law at issue is known as the Solomon Amendment, named after the late New York Republican Rep. Gerald Solomon who sponsored it. The U.S. Court of Appeals for the 3rd Circuit struck down the statute last year. Rosenkranz came under heavy attack Tuesday from several justices, including Roberts, whose questioning showed his conservative stripes perhaps more than in any oral argument since he became chief justice in September. Roberts said the law, passed in 1994, “doesn’t require anything” from universities in terms of support because they can simply choose to refuse federal money. But universities contend that because the law allows the government to withdraw federal funds from an entire university, even if only the law school refuses equal access to military recruiters, that is an impossible choice that amounts to coercion. Roberts shrugged off that argument Tuesday, implying that if universities really felt strongly about the military’s policy regarding homosexuality, they would pay the price of losing federal money institution-wide.Rosenkranz also countered that under the Court’s precedents, the government may not use the threat of cutting off funds to force recipients to surrender their constitutional rights. “All bets are off if there is a superseding right,” he said. Roberts fired back that there is also a “right to raise the military.” He and other justices seemed to view the Article I power of Congress to “raise and support armies” as a justification for the recruiting statute that outweighs law schools’ First Amendment objections. Roberts also knocked down another of the law schools’ arguments, telling Rosenkranz that “everyone knows” that the policies of a recruiter like the military don’t necessarily reflect the views of the host institution. At another point, Justice John Paul Stevens asked Clement if a university could “symbolically” register its objections by giving military recruiters equal access but at a different campus location from other recruiters. Roberts interjected, in a mocking tone, “Sort of separate but equal.” Justice Antonin Scalia was also tough on Rosenkranz, arguing that the Court has a long tradition of deferring to the military on matters such as recruitment. Rosenkranz said that Congress deserves deference only if it has more expertise on a military issue than the courts do. Justice Stephen Breyer chimed in that the military had in fact articulated a need for unfettered recruiting on campuses. Both Rosenkranz and Clement once clerked for Scalia, though Rosenkranz worked for Scalia while he was on the D.C. Circuit before joining the Supreme Court. Rosenkranz went on to clerk for the late Supreme Court Justice William Brennan Jr. When government lawyer Clement started off the oral argument with a spirited defense of the law, he incurred a brief round of skeptical questioning. Scalia and Justice Sandra Day O’Connor asked Clement whether in fact the law schools really were giving the military unequal treatment. They suggested that military recruiters who are disfavored by law schools are in exactly the same position as any other employer who discriminates against gays, and hence receive equal treatment. That argument was advanced in a brief filed by a group of Harvard Law School professors and written by former acting Solicitor General Walter Dellinger III. Clement deflected the argument by acknowledging that Congress was entitled to demand favored access for military recruiters in terms of getting on campus. Once military recruiters are on campus, he said, the Solomon Amendment addresses whether the military has an equal ability to reach students on a par with other recruiters. Rosenkranz did not pick up on the Harvard argument, and it was barely mentioned again. Clement also seemed to win points by suggesting that even under the law, host institutions can make their disapproval of military recruiters well known to students by doing things like posting signs next to the rooms where the recruiters meet with students. Justice Anthony Kennedy asked if a law school could organize a demonstration in which students are jeered on their way into the room to meet military recruiters. Clement said yes, indicating that the government’s rule was, “Access, yes, but be respectful of speech.” Scalia looked skeptically at his former clerk Clement and said, “You’re not going to be an Army recruiter, are you?” Tony Mauro can be contacted at [email protected]

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