Military Recruitment on Campus
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RAY SUAREZ: The case was Rumsfeld versus Forum for Academic and Institutional Rights, or FAIR. And to bring us inside the courtroom is NewsHour regular Jan Crawford Greenburg of the “Chicago Tribune.”
And, Jan, let’s begin with learning how this case came to court and how it had fared in the earlier cases.
JAN CRAWFORD GREENBURG: Oh, sure. This case came about when a group of colleges and law schools and their faculties challenged a federal law that required them to allow military recruiters onto their campuses if those schools accepted federal money and if they allow private employers to also come on and recruit students and talk to students.
So this group of colleges and law schools and their faculties joined together to say the law was unconstitutional. And they prevailed in a lower court and that’s the dispute that ended up in the Supreme Court today.
RAY SUAREZ: Now, a lot of the debate that surrounded this case has had to do with the “Don’t Ask, Don’t Tell” policy of the military. But Don’t Ask, Don’t Tell and the university rules against discrimination against gays weren’t involved in this case, were they?
JAN CRAWFORD GREENBURG: No, not at all, although the law that was at the heart of this case was in a direct response to the “Don’t Ask, Don’t Tell” policy which, as you know, was adopted by the military in 1993. It was a compromise between the Clinton White House and the Pentagon to allow homosexuals into the military.
But these schools, the colleges and the law schools, say that that law conflicts with some of their policies on discrimination based on people’s sexual orientation because it doesn’t allow openly gay members into the military. Congress saw that as a problem. They were worried that the colleges would ban these military recruiters from college campuses so that’s why it stepped in and passed this law in 1994 originally, called the Solomon amendment after its main sponsor, to ensure that the military could continue recruiting on college campuses.
RAY SUAREZ: Well, of course, the Rumsfeld in Rumsfeld versus FAIR is the secretary of defense and arguing on behalf of the United States Government was the solicitor general, Paul Clement. What was the thrust of his argument?
JAN CRAWFORD GREENBURG: Well, he strongly argued that there’s no constitutional problem with this law, that first of all the colleges and universities, if they don’t want the military to come on to campus, they don’t have to take the federal money. The law only says if you take federal money, money from the government, then you’ve got to let the military come on and talk to your students. So he saw no problem at all with the constitutionality of the law.
He also argued that if the government doesn’t prevail in this case and the law schools and the universities can ban the military because they disagree with this specific policy, “Don’t Ask, Don’t Tell,” they could also ban the military for other reasons, say, because they didn’t agree with the war in Iraq or they might disagree with the military’s policy on women or other areas that they may see problems with how the military approaches things.
So he said there’s no constitutional problem and furthermore, a ruling against the government could have even more broad effects than this specific policy at issue.
RAY SUAREZ: Arguing for the colleges and universities was Joshua Rosenkranz. How did he sum up the school’s position?
JAN CRAWFORD GREENBURG: Of course, he said, no, that’s exactly the wrong way to look at it. This message, this policy by the government is one that the schools disagree with very strongly.
I mean, it’s completely at odds with their policies against discrimination based on sexual orientation, and so if the military comes on campus with this message that they’re not going to allow openly gay people into the military, it looks like that’s the university’s message, that the university would support that message.
So he argued that that’s directly unconstitutional. It’s an unconstitutional burden on the universities and it violates their free speech rights because it forces them to disseminate this message. They’ve got to send e-mails out, telling people that the military is on campus. They have got to help the military set up their recruiting efforts with students. So he argues that that’s unconstitutional because they’re required to help disseminate this message that they disagree with.
RAY SUAREZ: Well, once again, we had an argument that was available to the public immediately on audiotape. So let’s hear from some of the argument: First, an encounter between Justice Ginsburg and Solicitor General Clement. Tell us about it.
JAN CRAWFORD GREENBURG: Well, this is an exchange in which we’re kind of seeing these arguments come together, that the solicitor general is concerned that this law could be applied in a very broad way but then we’re seeing some concern from the justices about the university’s positions as well.
RAY SUAREZ: Let’s listen.
JUSTICE RUTH BADER GINSBURG: That would be rather far fetched. The pitch that’s being made is an equality pitch that we are teaching our students equality, the equal stature of all people. So I think that your example does not fit.
PAUL CLEMENT: Well, with respect, Justice Ginsburg, I’m not sure I understand why not. It’s the same idea. In order to teach equality that there should be no discrimination against homosexuals, we’re going to exclude, (a), military recruiters, and while we’re at it, the former military as well, because they voluntarily joined the forces knowing that they had a discriminatory practice.
It’s no stretch of the imagination to think that the principle that’s being articulated by respondents would stretch well beyond simply a direct anti-discrimination motive. The free speech interests that are articulated on the other side would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan, or the discriminatory hiring policies.
I also think with respect to the issue of discrimination it’s worth pointing out here that there’s more than one way to understand whether or not the military’s policy is discriminatory.
JUSTICE DAVID SOUTER: Okay. But even if you do that, you’re still left, it seems to me, with a problem. Whether you characterize the problem as discriminatory and anti-discriminatory university policy or not, you’re still left with a speech problem that they raise, that in effect you are forcing them, in effect, to underwrite your speech up to a point. And you are forcing them to change their own message.
You’re forcing them into hypocrisy, in one alternative. And those arguments don’t depend upon the sort of the discriminatory character of what may be at stake.
PAUL CLEMENT: I think that’s exactly right, Justice Souter. And I think those arguments would be the same even if what was going on here was a concern about the military’s other policies. You would still have a concern that the military is being forced onto campus to make its own speech, and you would still have the concern that that interferes with the message of the university.
RAY SUAREZ: Now when she retired she probably never expected to be hearing this case but we heard a lot from Justice Sandra Day O’Connor today, didn’t we?
JAN CRAWFORD GREENBURG: We did although we don’t know if she will be able to participate in this case because, as you know, if she’s not sitting on the bench when her successor is confirmed, her vote won’t count. But she was very active at the argument today.
And in this next exchange we saw Justice O’Connor doing what she so often does when she’s on the bench: Looking at the practical implications of the case. In this exchange she’s wondering what the universities could do and what the law would allow to distance themselves from this message that they disagree with.
She’s saying could they put up signs or could they do something else to disassociate themselves with the message going to the practical implications and seeing how it would actually work in the real world.
RAY SUAREZ: And, again, she’s questioning the government’s lawyers, the solicitor general.
JUSTICE SANDRA DAY O’CONNOR: Does this 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, can they come forward with their position on this in every recruitment office without violation of the amendment?
PAUL CLEMENT: Yes, they can, Justice O’Connor. I think there would be — in fairness, I want to be clear, I think there might be a line where there would be — the recruitment office could conduct itself in a way that would effectively deny access.
But I think with that caveat, there is nothing in the act that prevents the universities from explaining -
JUSTICE ANTHONY KENNEDY: Let me ask you this question –
JUSTICE RUTH BADER GINSBURG: Gen. Clement, can you be affirmative? Now what can the law faculty do to disassociate 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?
PAUL 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. I would draw the line, though, at saying that they have to go to the undergraduate campus, because I think as a practical matter –
JUSTICE ANTHONY 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?
PAUL CLEMENT: The school could organize –
JUSTICE ANTHONY KENNEDY: When it’s, say, a job fair and all the employers are there, but then they jeer just the — and the school organizes a line jeering both the recruiters and the applicants? That’s equal access?
PAUL CLEMENT: I think that would be equal access. I think you have to draw a practical line here between –
JUSTICE ANTHONY KENNEDY: I’m surprised –
PAUL CLEMENT: — between access and allowing the speech. But I think you have to –
JUSTICE ANTHONY KENNEDY: You’re not going to be an Army recruiter, are you? (Laughter)
PAUL CLEMENT: Well, 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.
RAY SUAREZ: And arguing for the schools, Joshua Rosenkranz was confronted with skeptical questioning from the new chief.
JAN CRAWFORD GREENBURG: That’s right, Chief Justice Roberts was questioning Mr. Rosenkranz’ contention that people could be confused that they would think that the school could be embracing this message by the military.
RAY SUAREZ: Let’s hear that.
CHIEF JUSTICE ROBERTS: Nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment. Everybody knows that those are the employers. Nobody thinks the law school believes everything that the employers are doing or saying.
JOSHUA ROSENKRANZ: That’s correct, Your Honor. But again, endorsement is also not an element of a compelled speech claim. But let me bring those two questions together on a factual point. The law schools are disseminating a message that they believe it is immoral to abet discrimination when they –
JUSTICE SANDRA DAY O’CONNOR: But they can say that to every student who enters the room.
JOSHUA ROSENKRANZ: And when they do it, Your Honor, the answer of the students is, “We don’t believe you. We read your message as being that there are two tiers.” There is a double…
CHIEF JUSTICE ROBERTS: The reason they don’t believe you is because you’re willing to take the money. What you’re saying is this is a message we believe in strongly, but we don’t believe in it to the detriment of $100 million.
RAY SUAREZ: And, Jan, here we have another argument with audiotapes available almost immediately. Why is this happening frequently now?
JAN CRAWFORD GREENBURG: Well, this is in response to requests by media organizations for some of these big, significant cases with tremendous importance to everyday Americans. And it’s the middle ground. I mean obviously we don’t have cameras in the courtroom but this is a way of trying to get some technology and some audio into the courtroom so people can hear and listen to these justices for themselves.
RAY SUAREZ: Does it signal a different attitude on the part of the new chief?
JAN CRAWFORD GREENBURG: I don’t think so. The court had been in recent years allowing this audiotape to be released very quickly for some of these big cases but obviously these first two that we’ve seen since the new chief justice has come on the court does indicate that he’s willing to continue this practice. Cameras in the courtroom though, that’s another matter entirely.
RAY SUAREZ: Jan Crawford Greenburg, thanks for being with us.
JAN CRAWFORD GREENBURG: You’re welcome.