GWEN IFILL: Can a law school refuse to allow military recruiters on campus if it doesn't agree with the policy of excluding openly gay people? In a definitive 8-0 ruling that touched on free speech, gay rights and academic freedoms, the Supreme Court today said no.
Marcia Coyle of the National Law Journal was there, and she joins us now.
This was a unanimous opinion written by Chief Justice Roberts, no other commentary added to it.
MARCIA COYLE: Correct.
GWEN IFILL: But what, in the end, does military recruitment have to do with gay rights?
MARCIA COYLE: Gwen, this case really, believe it or not, has its roots in the early '70s, when a lot of colleges, universities terminated ROTC programs and military recruiting as anti-Vietnam war protests. At the time, Congress inserted a provision in the defense budget saying: If you do this, you can lose your federal funds.
Fast-forward a couple of decades. Gay and lesbian groups are organizing on campuses. A lot of universities adopt anti-discrimination policies. The military discriminates against gays. Later, we have the "don't ask, don't tell" policy. Gay and lesbian groups urge universities to bar military recruiters.
Gerald Solomon, a congressman from New York, gets enacted into law a provision that says, basically, again: If you don't allow military recruiters on campus, we're going to take away your federal funds.
It's an uneasy truth. Nothing much happens until after 9/11. The Defense Department decides it wants equal access on campuses, the same access to students that employers who comply with non-discrimination policies get; law schools then sue.
GWEN IFILL: And, in the end, in many ways, this became a free speech case at the court. How did that happen?
MARCIA COYLE: Well, actually, the opinion today said it really doesn't have much to do with free speech.
GWEN IFILL: That's what the people who brought the case were arguing.
MARCIA COYLE: Right, they absolutely were. They said the government, by putting a condition on the federal funding, is actually imposing a penalty on the law school's ability to speak; it's compelling the law school to convey a message that it doesn't agree with.
In the opinion today, Chief Justice John Roberts said: Well, it's true we've said you can't compel speech. For example, state law can't require students to recite the Pledge of Allegiance. New Hampshire can't require its motorists to put the motto "Live Free or Die" on their cars, but that's not what's happening in this case.
The Solomon Amendment, he said, doesn't require the law schools to say anything, doesn't prevent them from saying anything; it regulates conduct. And when a law school has to post the notice that military recruiters are on campus or send an e-mail that they're coming, that's incidental to what's really happening here, which is conduct.
GWEN IFILL: And what about the right to association, another argument that the law professors who brought this case were arguing?
MARCIA COYLE: It was their second main point. They said, well, our ability to convey our message of nondiscrimination is significantly hurt by the presence of military recruiters on campus and our obligation under this funding commitment to assist them.
And, ironically, they relied on a decision by the Supreme Court back in 2000 in which the court struck down a state law that said that the Boy Scouts of America had to accept an openly gay assistant scoutmaster into their ranks. Again, Chief Justice Roberts said: Well, this is different. Military recruiters are outsiders; they're coming on to campus for the limited purpose of recruiting students for jobs.
GWEN IFILL: No one's hiring them to teach law.
MARCIA COYLE: Absolutely. They're not trying to become members of the law school. So you, law school, your association rights really aren't affected here.
GWEN IFILL: Did the law professors also challenge -- and what did Justice Roberts say -- about the idea that Congress would say, "If you don't abide by our rules, you don't have to take federal money"?
MARCIA COYLE: And I think this was a very important aspect of the decision and maybe gives us a little insight into the Roberts court. Chief Justice Roberts said that Congress has broad and sweeping power to raise armies, to provide for the common defense, and that power includes the authority to directly order campuses to allow military recruiters on campus.
So if Congress can directly order it, the First Amendment will not prohibit them in directly requiring access through its spending power, which was the condition on federal funding.
GWEN IFILL: But was this only about military recruiting or was it about all kinds of recruiting, government recruiting?
MARCIA COYLE: Well, this case was really about military recruiting. However, the comments about what Congress can do in terms of conditioning the receipt of federal funds in order to achieve a certain purpose, I think, has application outside the military context.
And we've seen Congress do this before. Remember, the Grove City case some years back, in which Congress told colleges: If you don't comply with Title IX of the education amendments, which opened the door to women in college athletics, we'll take away your funding. And the colleges then raised First Amendment arguments that the Supreme Court did not accept.
GWEN IFILL: How much money are we talking about here that colleges, private institutions, would rely on from the federal government?
MARCIA COYLE: We're talking about millions and millions of dollars. And there were some law schools that did not allow recruiters on campus until last fall. I think it was Harvard caved in, so to speak, because it was concerned it wasn't just the law school that would lose money; under the policy of the Solomon Amendment, the entire university would lose money, even if it was only one part of the university that refused to allow recruiters on campus.
GWEN IFILL: So, in practice, did any of these universities who raised these objections to this law ever kick recruiters off the campus? Did it ever happen?
MARCIA COYLE: I don't know that they kicked them off; I know that there were some who tried to accommodate the military with different kinds of arrangements. For example, "Well, we'll set up an office for the military that's not, say, on the law school's grounds, but in another part of the university so that it doesn't look like the law school is promoting the military's message."
Some did bar. And, in fact, there are a few independent colleges in the United States today that don't accept federal funds that do bar military recruiters on campus.
GWEN IFILL: But even if you put them in a different room or on a different part of the campus, that's not equal access, the court was saying.
MARCIA COYLE: It's not, and it's not what the Defense Department wanted after 2001. It really was a change in policy in which they sought equal access. It wasn't required under the original Solomon Amendment, and it was only when federal courts raised questions about how the Defense Department was interpreting the Solomon Amendment that Congress later -- and after the law schools filed suit -- enacted language to codify what the Defense Department wanted to do here.
GWEN IFILL: Marcia Coyle, thanks a lot.
MARCIA COYLE: You're welcome.