"This case is not about whether military recruiters will be barred at the campus gates," [Joshua Rosenkranz, the attorney for FAIR] said. "Congress had a law on the books that guaranteed entry to campus. But that was not what Congress really wanted, so it passed a new law.That's an awfully skimpy story, padded with the info that the Solomon who gave his name to the law was Representative Gerald B. H. Solomon, "a conservative Republican from Glens Falls, N.Y., who served more than eight years in the Marines and successfully pushed to deny federal student aid to men who failed to register for the draft" and who "challenged Representative Patrick Kennedy, Democrat of Rhode Island, to 'step outside' to settle a disagreement over a proposed assault weapons ban, which Mr. Solomon opposed." Isn't it always relevant that some old conservative was a cranky bastard?
"What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message."...
But Chief Justice John G. Roberts Jr. sounded skeptical at one point. The Solomon Amendment, he said, "doesn't insist that you do anything."
Here's a little more quoting from the oral argument, from FOXNews:
An impatient Justice Sandra Day O'Connor interrupted Rosenkranz, reminding him that "the government takes the position that the law school is entirely free to convey its message to everyone who comes. So how is the message affected in that environment?"Dueling ideas? Aren't law students especially good at decoding conflicting ideas? Yes, but the point is that by having to provide the facilities, the law schools are being forced to express a second idea that they don't agree with, that conflicts with the thing they want to say.
She added that the law school can tell "every student who enters the room” that they find the policy immoral.
But, Rosenkranz replied that when the students enter the room they are receiving dueling ideas. "The answer of the students is we don’t believe you. We read your message as being there are two tiers ...," he said.
"The reason they don’t believe you," Roberts said, cutting the attorney off, "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 tune of $100 million.'"In this view, the law schools are not really even forced to contradict themselves. The message they send is twofold, but both things are true: We oppose discrimination based on sexual orientation, but not enough to give up $100 million. You're not forced to say anything you don't believe, just motivated to do something, and anyone watching what you do can draw the inference.
"Nobody thinks the law school is speaking through those employers that come onto its campus for recruitment. Everybody knows those are the employers. Nobody thinks the law school believes everything the employers are doing or saying," Roberts said.This is the government's strongest argument, isn't it? The schools are really trying to control what messages the students receive and are not really suffering from having it seem as though they are expressing that message. The law schools' rejection of the military's message is, in fact, one of their best known opinions. The military's forced entry into a school's territory amplifies a school's message of opposition to the "don't ask, don't tell" policy.
And, moreover, this lawsuit has amplified that message. The law schools have used this litigation to shine a spotlight on the federal government's harsh use of overwhelming power, power that the Court will almost surely uphold.
UPDATE: Dahlia Lithwick has lots of quotes from the argument, including this indicating that Justice Breyer will side with the government:
Breyer telegraphs his vote when he says that the remedy to bad speech "is not less speech. It's more speech." Breyer adds, "I can't find anywhere in the record where a student believes this speech is the school's. I can't even find a recruiter who told a student they can't join the military if they're gay."Dahlia notes that at one point, it's the liberal Justices who are beating on FAIR's lawyer. (Only Justice Souter seems to support him.) She concludes: "You want the truth? You can't handle the truth. The law schools have no case."
ANOTHER UPDATE: Here's Linda Greenhouse's description of the "lopsided argument during which the justices appeared strongly inclined to uphold [the] federal law":
[T]he law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.
"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."