The U.S. Supreme Court heard arguments on Dec. 6 tackling whether law schools must allow military recruiters the same access as other potential employers in light of the military’s discrimination of openly gay students. During the hearings — which came on the heels of Stanford protests following military recruitment at the Law School on Oct. 3, 2005 — the court appeared likely to uphold the Solomon Amendment, a law that effectively forces universities to allow military recruiters access or risk the loss of federal funding.

“Sadly it seems the Supreme Court is sympathetic to the military recruiters and will likely allow them further access to students who are in college,” said junior Stephen Funk, a gay student who reached the rank of Lance Corporal while serving in the Marines. “I feel if the justices rule in this direction it indicates disregard for any university’s right to freedom of speech and sense of equality and fairness. It’s sad that the courts look likely to defend the military’s right to exclude and mistreat, and feels that is more important than a university’s First Amendment rights.”

In the case, Rumsfeld vs. Forum for Academic and Institutional Rights (FAIR), the justices raised issue with the claim that allowing military recruiters onto campus represented compelled speech, advanced by the American Association of Law Schools’ lawyer, E. Joshua Rosenkranz. Both Solicitor General Paul D. Clement, the military’s lawyer, and several justices suggested signs, disclaimers on advertisements and even University-organized protests as means of separation.

“It seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails and advertisements that say the law school does not approve, and in fact, disapproves of the policies of some of the employers who you will meet,” said Justice Anthony Kennedy during the hearings. “That’s the end of it.”

Indeed, the court seemed to believe that a law school could distance itself from the military’s message rather easily.

“Nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment,” Chief Justice John Roberts Jr. said. “Nobody thinks the law school believes everything that the employers are doing or saying.”

However, Law Prof. Larry Kramer, dean of Stanford Law School, asserted the justices fundamentally misinterpreted the right to be free from compelled speech.

“The ability to distance yourself from forced speech has nothing to do with the right and never has,” Kramer said. “If the government passed a law saying The Stanford Daily must publish an editorial praising the Bush administration, the fact that the Daily could add articles and textboxes all around it saying ‘the government made us do it’ doesn’t make the law any less illegal. The possibility of simultaneous speech doesn’t make it any less a violation of the First Amendment than making us do it in the first place.”

The justices also suggested that law school administrations have the legal imperative to reject government money if they believed it immoral to support a discriminatory policy. A law school that accepted money while opposing the military recruiters’ presence gave the appearance of hypocrisy, a point Roberts implied in his comments to Rosenkranz.

“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,” he said.

However, Kramer stated that the Law School already takes no federal money, so to penalize other areas of the University to force the Law School’s hand amounts to a secondary boycott, which is illegal in nearly any other context.

“They’re going to make the Med School, the Engineering School, every other part of the University give up money,” Kramer said. “It’s just a way of getting the Engineering School, the Med School to say ‘Law School, you have to let them recruit.’ The money they’re asking other parts of the University to give up has nothing to do with military recruiters.”

However, justices questioned whether precluding the military from recruiting would violate its right to free speech.

“Why you don’t have here what I’d say is normal in the First Amendment area, that the remedy for speech you don’t like is not less speech, it is more speech,” Justice Stephen Breyer said.

In light of an expected ruling in favor of the military recruiters, perhaps the activists will have no choice but to take Breyer’s comments as advice.

“[If the Court were to rule in the recruiters’ favor] we’d be back to where we were before protests — trying to get Congress to change a patently bad law,” Kramer said.

Experts expect the Court to announce a decision in the first half of 2006.