Rumsfeld v. Forum for Academic and Institutional Rights, Inc. - Oral Argument - December 06, 2005

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Media for Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Audio Transcription for Opinion Announcement - March 06, 2006 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Audio Transcription for Oral Argument - December 06, 2005 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

John G. Roberts, Jr.:

We'll hear argument first this morning in Rumsfeld versus Forum for Academic and Institutional Rights.

General Clement.

Paul D. Clement:

Thank you, Mr. Chief Justice, and may it please the Court--

The Solomon Amendment conditions the Federal funding of educational institutions on receiving something that any donor would expect, the opportunity to recruit students educated at the funded institutions.

That opportunity allows the military a fair shot at recruiting the best and the brightest for the military's critical and vital mission.

The Federal Government does not insist on any predetermined level of access; rather, it simply asks what other employers receive.

Likewise, the recipient schools remain free to criticize the military and its policies, and, of course, they remain free to decline Federal funds altogether.

As a result of these circumstances, the Solomon Amendment comports with both the Constitution and with common sense.

Antonin Scalia:

When you say that it asks what other employers receive, but these institutions, I gather, would not allow other employers, who have the same policy against the hiring of homosexuals, to interview at their institutions.

So, you're receiving what other employers in the same situation would receive.

Paul D. Clement:

Well, I think, Justice Scalia, that you have to look at the... I think, the statute in two steps.

One is, I think it's quite clear that it gives the military a right to gain access to campus as a condition, that it has... that they have to gain access to campus in order to perform their military recruitment.

Sandra Day O'Connor:

Yes, but it says... I thought it says that the military must have equal access with any other employer.

Now, every other employer is subject to the same policy, presumably, of the law school.

Paul D. Clement:

Well, with respect, Justice O'Connor, I think there's several points to be made in response to that.

First of all, I think the Solomon Amendment itself is a recognition that the military is not like any other employer for purposes of its policy and its treatments of homosexuals.

And I think that, unlike any other employer, the military's policy is a result of a congressional mandate.


Anthony M. Kennedy:

Well, that's fine, but you were the one that made the argument that they want the same access as other employers.


Paul D. Clement:

--And what--

Anthony M. Kennedy:

--when you... I just--

Paul D. Clement:

--what I would say--

Anthony M. Kennedy:

--want to make sure what the calculus is, at the outset.

Paul D. Clement:

--Well, and Justice Kennedy, I think the point I would say is, in terms of gaining access to campus, we want to gain access at a level, and under circumstances, that perhaps some other employer would be excluded.

Well, once access is gained, then the question arose under the prior version of the statute, all right, if access is gained, what level of access suffices?

And on that second order question of what level of access suffices, then you look to what is provided to any other employer.

And so, that's why, when I say that we don't ask for any predetermined level, we don't ask for seven meetings a year, we don't ask for entrance into the public address system or the email system.

We simply say,

"Once you let us on campus, just give us, and extend to us, an opportunity to recruit on the same terms as others. "