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Pentagon, law schools square off

Can universities accept federal funds, reject military recruiters?

From CNN's Bill Mears

The Supreme Court heard arguments in a case pitting law schools against the military.

WASHINGTON (CNN) -- The Supreme Court demonstrated deep skepticism Tuesday that universities should be allowed to turn away military recruiters and still accept federal funds.

The issue came to the court's attention with a free-speech dispute over the Pentagon's controversial policy barring openly gay personnel. Each side claims it is being discriminated against by the other.

Led by Chief Justice John Roberts, several members of the bench said schools opposed to the military's policy could simply refuse the government's money. And Justice Sandra Day O'Connor added that there is nothing stopping schools from allowing recruiters while still making their objections known by posting disclaimers. (Watch law schools take on the military -- 3:20)

More than ideology is stake. The military said it has pressing needs for educated talent with highly specialized skills, such as translators, engineers and lawyers.

The Pentagon has suffered recent shortfalls in its recruiting goals, and officials worry military preparedness in time of war may be threatened. They say schools are free to bar the government from campus but should not continue receiving government money as a result.

Universities receive about $35 billion a year in federal funds, much of it for medical and scientific research. They argue their anti-discrimination policies are constitutionally protected and that academic freedom should not be compromised as a condition for accepting government benefits.

Both sides worry about potentially harmful and lasting effects from lack of funding for defense research programs, many of them based in academia.

During oral arguments, the justices appeared open to claims by the government that it wanted a "fair shot" at top students.

"We want to be extended the opportunity to recruit on the same level playing field," said Solicitor General Paul Clement.

He said if the law were overturned, schools could take their anti-discrimination policies further by refusing admission to veterans as a protest of the Bush administration's policy in Iraq and Afghanistan.

Justice Antonin Scalia added that recruitment is vital to the military's preparedness, "something specifically authorized by the Constitution."

Article I of the Constitution gives Congress the power "to raise and support Armies ... (and) to provide and maintain a Navy."

Nearly every law school and many universities have policies preventing employers who discriminate based on race, gender or sexual orientation from participating in career placement on campus.

The U.S. military bans open homosexual service members, following the 1993 "Don't Ask, Don't Tell" policy. That policy prevents officials from inquiring into whether a service member is gay or lesbian but allows the military to discharge homosexuals if any evidence emerges of their sexual orientation.

The military told schools it could not comply with the sexual orientation provision. Many schools responded by banning military recruiters, and Congress responded in 1994 by blocking federal funds from schools that did so.

The "Solomon Amendment," as the fund-blocking provision has become known, eventually prompted compromise among universities and the military. But the Bush administration took a hard-line stance shortly after the September 11, 2001 terror attacks, demanding access equal to that given other job recruiters.

A group of law schools sued, arguing a constitutional right "to be free from compelled endorsement of messages repugnant to them."

The government said it sought only equal treatment, but the schools countered that they were being asked to grant an exemption that other employers did not enjoy. A federal appeals court ruled for the schools, concluding "unconstitutional conditions" existed when the government restricted speech by threatening to withhold money.

The attorney for the law school faced tough questioning from the bench. Joshua Rosenkranz argued the military wants a privilege that does not extend to other employers, allowing it to bypass the school's anti-discrimination policy.

"The government takes the position that the law school is free to convey its (anti-discrimination) message to anyone who cares," O'Connor said. "What's wrong with that?"

Rosenkranz answered, "The ability to protest a forced message is never a cure for compelled speech."

"Nobody thinks the law school is speaking through the employers who come onto campus for recruitment," Roberts followed up. "Everybody knows those are the employers who are speaking."

Rosenkranz: "The law schools' message is, they believe it is immoral to abet discrimination."

O'Connor: "But they can say that to all" who want to hear that message.

Rosenkranz: "But when they say that, students don't believe the message."

Roberts: "The reason they don't believe you is because you're willing to take the money. What you're saying is, it's a message we believe in strongly, but not to the tune of a hundred million dollars."

Roberts repeated that theme several times, wondering whether this case was less about free speech and more about money. He later asked, "If you had a policy that denied employers that use tanks, would that pass muster?"

Rosenkranz: "For a religious institution, absolutely," saying some church-based schools may seek such a policy.

Roberts: "What about Yale Law School?" which was among the institutions opposing the military.

Rosenkranz: "Yes, it would apply."

Scalia: "Where did the issue of religion come from; I thought we were talking about freedom of speech?"

In addition to Roberts, O'Connor and Scalia, Justices Anthony Kennedy and Stephen Breyer also appeared inclined to uphold the congressional law.

Justice David Souter was among those who seemed somewhat sympathetic to the universities' plight.

"The law schools are taking the position on First Amendment grounds, and that position is interfering with military recruiting, there's no question about it," he said.

Both Souter and Justice Ruth Bader Ginsburg asked probing questions of both sides.

Other research programs, including medical and scientific studies, could be at stake, because the law was amended to include withholding funds from the entire university even if the law school was the only one preventing recruiters.

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