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

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.

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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.

And–

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.

That’s–

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. “

Paul D. Clement:

And that obviously reflects the commonsense judgment that the military is competing for the same pool of students that the other employers are competing for.

Stephen G. Breyer:

The constitutional argument, I guess, is,

“Does the Constitution require access… is… does it permit a statute which says you have to give access to the military, when you wouldn’t give access to any other employer? “

Paul D. Clement:

That’s exactly right, Justice Breyer.

Stephen G. Breyer:

All right.

Now–

Paul D. Clement:

And, of course, we take the–

Stephen G. Breyer:

–So, then what you’re saying, it–

Paul D. Clement:

–position that–

Stephen G. Breyer:

–and then what’s the answer to that question, “Does the Constitution”… how does the… what’s the answer?

Paul D. Clement:

–I think there’s… I mean, there’s… the Constitution is… has no difficulty with such a statute.

It is this statute.

As I say, there’s… if you want to think about it being preferential entry into campus, and then, at that point, equal access on terms of the… the terms that are extended… however you want to think about it, though, there’s no difficult constitutional question here.

David H. Souter:

Well, your argument–

Antonin Scalia:

No, but it seems me you’ve got us off galloping in the wrong direction.

The statute doesn’t require simply giving the same access that you give to other employers.

It requires much more than that.

It requires that they… it prohibits, or cuts off, funds if an institution either prohibits or, in effect, prevents the Secretary of a military department from gaining access to campuses for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.

So, it seems to me that the statute demands more than simply you give the same access as all other employers.

If you allow any other employer, you have to give it to the military in the same manner.

Paul D. Clement:

I think that’s right, Justice Scalia.

I’m… and I’m sorry if I got us off on the wrong foot.

Ruth Bader Ginsburg:

General–

Paul D. Clement:

I think there is this debate–

Stephen G. Breyer:

Yes, but it is an important question, because the… there is an amicus brief that says, “Go read the statute”.

And, really, the statute was not about homosexuals in the military, it was a statute about universities in Vietnam not letting military people on campus.

So, in the… at the heart of the statute was a matter which was unique to the military.

Now, this is a matter that isn’t unique to the military.

So, why not interpret the statute in the way that the amicus brief suggests in order to avoid a difficult constitutional question?

Paul D. Clement:

–Well, a couple of points, Justice Breyer.

Paul D. Clement:

I don’t think there is a difficult constitutional question to be avoided here, and I’ll get back to that whenever I can.

As to the statutory interpretation question itself, I think that in… the proper frame of reference here is probably not the original 1969 version of this, which conditioned only NASA’s fund.

The original starting point is probably about 1996, when the first version of the modern Solomon Amendment was introduced.

And there have been a couple of iterations of it, but I think one important reference point is the version that was in force at the start of this litigation, and that’s actually reproduced at page 88(a) of the petition appendix in the District Court opinion.

And if you look at that against 88(a) of the petition appendix, there would be no question that what is at stake here is access to the campus, and the amicus argument that’s being raised is not even available; because the statute at that point is, I think, in fairness, materially identical, except for that last clause, which says

“in a manner equal in scope to… in character to that of any other institution. “

So, it’s clear that when this litigation starts, there’s no argument available to the amicus that the statute effectively accomplishes nothing.

Now, what happens under this version of the statute is, a second order question arises.

Okay, the… in order to comply with the Solomon Amendment, universities have to give access, they have to allow the military to gain entry and gain access to the students in the terms of the then extant statute.

The–

John Paul Stevens:

May I interrupt with one–

Paul D. Clement:

–Sure.

John Paul Stevens:

–brief question?

Would that be true if the university didn’t allow any access whatsoever to any employer?

Paul D. Clement:

As a regulatory matter, the military took the position that if they simply barred access to–

John Paul Stevens:

No–

Paul D. Clement:

–anybody–

John Paul Stevens:

–not the regulatory matter.

The statute.

Paul D. Clement:

–I think you could read the statute either way on that question, Justice Stevens.

They interpreted it to say that there was no equal… there is no obligation to give entry if no employer was on campus at that time.

The other thing they interpreted in the statute as a regulatory matter, though, was this second order question of,

“All right, if they get some access, is unequal access enough? “

And as a regulatory matter, they said,

“No. “

“We need access that is equal in character and scope to that provided to any other employer. “

And then what Congress did in the iteration of the statute that’s at issue here, which is reproduced starting at page 185(a) of the petition appendix is they effectively codified and ratified that regulatory interpretation by adding the phrase

“in a manner that is at least as equal in quality and scope to the access to campuses and to other students that is to provide it to any other employer. “

Ruth Bader Ginsburg:

–General–

Paul D. Clement:

But I think–

Ruth Bader Ginsburg:

–Clement, do I understand, with respect to that brief that offered a statutory interpretation to avoid a constitutional question, your answer is, that would be an unreasonable interpretation of the statute that we now have?

And if we’re talking about a predecessor statute in 1968, from the Vietnam days, that… this would have been a highly academic question, because there weren’t any such policies in any law schools with respect to recruiting.

Paul D. Clement:

–No, that’s true, Justice Ginsburg.

That’s why I said, in response to Justice Breyer, that I think that the proper point to start to focus on is the… these… is the 1994 Solomon Amendment.

And, at that point, there is a question about this policy.

At that point, the American Association of Law Schools does have its recruiting policies beginning in place, and I think the provision has been amended a number of times in the years since 1994.

There have been changes in the scope of the funding that’s covered.

First, student aid funds were put in, then they were taken out.

And then, this is the most recent iteration of the provision.

There’s no question that what’s at issue here is more than just the Vietnam era concerns about ROTC presence on statute, because that’s addressed in a different subsection of the statute.

That’s addressed in 10 U.S.C. 983(a).

So this provision, 10 90… 10 U.S.C. 983(b) is specifically addressed at the problem of access to campuses for recruiting.

And, I think, especially when you read the statute in light of the relevant history of the prior administrative interpretation, and that being codified and ratified by Congress, it’s very clear that this phrase

“in a manner that is at least equal in quality and scope to the access provided to any other employer. “

is just that, it’s a regulation of the manner of access, once access is granted.

And it addresses this difficult question of, If you allow some entry and access onto campus, what level of access is sufficient?

And so, I think that–

Antonin Scalia:

What does Title X of the United States Code deal with?

Paul D. Clement:

–It deals with the military.

Antonin Scalia:

Why do you chose to defend this principally on the basis of the Spending Clause, and not on the basis of what it… what it was, seemed to me, enacted in order to achieve, and that is the congressional power to raise and support armies.

Paul D. Clement:

Well, Justice Scalia, I think the statute is clearly supported under both provisions, under the spending authority and the Article I authority to raise and support armies.

I think, in answering your question, we tended to focus on the fact that it was a spending condition, because we thought, under this Court’s precedence, that made it an even more straightforward case.

We certainly think it would be constitutional, even if it were a direct imposition, and we certainly think the fact that this is an exercise of Congress’s undoubted authority to raise and support an army, is relevant to the constitutional analysis.

And if I could move over to the constitutional question and address that for a minute, I think one of the arguments that’s raised on the other side is that there’s an interference with associational interests in this case, and I think there are other statutes that, frankly, have much more of an interference with a university’s associational interest.

I mean, Title VII, for example, regulates who can be members of the university.

And I raise that also because another provision in Title… in terms of this same area of the military, requires that there not be discrimination against veterans in hiring and employment.

And you could easily see that a university could take their position to its logical conclusion and say,

“In order to show just how much we don’t like the military’s policy, we’re not only going to not let military recruiters on campus, but we are going to not hire former military people, veterans, and we’re not going to admit them to our classes. “

Now, who’s in the classroom, and who’s a member of the university–

Ruth Bader Ginsburg:

That would–

Paul D. Clement:

–seems–

Ruth Bader Ginsburg:

–be rather farfetched.

The pitch that’s being made is an equality pitch, that we are teaching our students equality, the equal stature of all people.

So, I think that your example does not fit–

Paul D. Clement:

–Well, with respect, Justice Ginsburg, I’m not sure I understand why not.

It’s the same idea.

In order to teach equality, that there should be no discrimination against homosexuals, we’re going to exclude, (a), military recruiters, and, while we’re at it, the former military, as well, because they voluntarily joined the forces knowing that they had a discriminatory practice.

It’s no stretch of the imagination to think that the principle that’s being articulated by Respondents, would stretch well beyond simply a direct antidiscrimination motive.

For example, NYU… this is in the joint appendix, at page 153… NYU, for 3 years, had a policy of excluding recruiters from the State of Colorado, simply because Colorado had passed Amendment II, which this Court dealt with in the Romer case.

And so, it’s not a matter of saying that,

“Well, you know, the only think that’s at issue here is excluding employers that are, themselves, discriminatory. “

The free speech interests that are articulated on the other side, would extend to any basis for criticizing the military, whether it was not liking the war in Iraq, the war in Afghanistan, or the discriminatory hiring policies.

I also think, with respect to the issue of discrimination, it’s worth pointing out here that there’s more than one way to understand whether or not the military’s policy is discriminatory.

Certainly respondents are entitled to view it as being discriminatory.

But the Congress that mandates this same policy towards homosexuals, I think, is equally entitled to look at it and say,

“No, there’s no discrimination going on here, because you have to take into account the special role of the military. “

David H. Souter:

–Okay, but even if you do that, you’re still left, it seems to me, with the problem… whether you characterize the problem as discriminatory and antidiscriminatory university policy or not, you’re still left with a speech problem that they raise, that, in effect, you are forcing them, in effect, to underwrite your speech, up to a point, and you are forcing them to change their own message.

You’re forcing them into hypocrisy, in one alternative.

And those arguments don’t depend upon the… sort of, the discriminatory character of what may be at stake.

Paul D. Clement:

I think that’s exactly right Justice Souter, and I think those arguments would be the same even if what was going on here was a concern about the military’s other policies.

You would still have a concern that the military is being forced onto campus to make its own speech, and you would still have the concern that that interferes with the message–

David H. Souter:

So, discrimination–

Paul D. Clement:

–the university–

David H. Souter:

–or no discrimination, you’ve got a speech issue that you’re going to address.

Paul D. Clement:

–I agree.

I mean, I think, ultimately, that cuts in our favor, because it shows that the other side’s position is not limited to this narrow context, but is a much broader first amendment claim.

Now, turning to that first amendment claim, I think what’s wrong with that claim is several things.

I think, with respect to what the military itself wants, it simply does not want a… primarily a speech activity to take place, it wants access for recruiting, which is a traditional commercial enterprise, it is an activity that is something that is regulated by Title VII in other Federal statutes.

Sure, there may be some incidental speech involved in that, but primarily it is an instrumental activity designed to get–

Antonin Scalia:

It happens, in this case, to be specifically authorized by the Constitution.

Paul D. Clement:

–It does, indeed, Justice Scalia, and I think, though… I mean, there is this sense in which we certainly concede that there maybe some incidental speech involved; certainly, the military recruiters are engaged in speech.

I’m… we’re not sure that’s really the relevant speech.

But even the university itself–

David H. Souter:

No, but you’re making a… if I understand what you’re saying, you are making a kind of O’Brien argument that the… that the burden on speech, whatever it may be, is an incidental burden to something else.

Well, that… I think we have to draw this line between recruiting, on the one hand, which is what the military wants to do, and the Solomon Amendment, on the other hand.

As I understand it, the Solomon Amendment is directed, or is responsive, entirely to positions taken by law schools on, among other things, first amendment expressive grounds, so that if we are going to address the Solomon Amendment, I think we are addressing an exclusively first amendment speech expression issue.

Paul D. Clement:

–Well, Justice Souter, I guess… I’m inferring that you’re drawing that conclusion from some of the statements of some of the floor sponsors about their purposes enacting the Solomon Amendment.

I mean, if you look at the test of the Act alone–

David H. Souter:

I don’t–

Paul D. Clement:

–I don’t think–

David H. Souter:

–know of any other reason for the Solomon Amendment.

Paul D. Clement:

–Well, I think the reason for the Solomon Amendment is to ensure that military recruiters, in fact, have an equal opportunity to recruit the same pool of individuals that all the other employers are trying–

David H. Souter:

But–

Paul D. Clement:

–to recruit.

David H. Souter:

–But they’re… but the Solomon Amendment, in order to accomplish that, is addressed to a particular expressive problem which occurs for the military… and for the law schools, for that matter… in law school recruiting.

So, it seems to me that… for… I mean, my only point is that the Solomon Amendment seems to have one objective.

Whereas, the “don’t burn your draft card rule”, in O’Brien, had two… or had a… let’s say, had a primarily nonspeech objective with an incidental speech burden.

Here, the sole objective, in the real world, seems to be an expressive objective.

Paul D. Clement:

Well, if by… “the expressive objective” you’re talking about is the military’s own recruiting, I guess–

David H. Souter:

No, this express–

Paul D. Clement:

–I agree with you.

David H. Souter:

–Yes, but the expressive objective is, the law schools are taking a position on first amendment grounds.

That position is interfering with military recruitment.

No question about it.

I don’t know how much, but I will assume that there is no question about it.

The Solomon Amendment is addressed solely, as I understand it, at the expressive activities which have, as you say, this interference.

Its sole objective is expressive.

Paul D. Clement:

No, I would disagree, Justice Souter.

If the… if the law schools were denying access to military recruiters, for any reason, be it a first amendment reason that they’d say it’s a first amendment reason, or just because they couldn’t be bothered, the Solomon Amendment would be written exactly the same way, which would say,

“Look, the military has an opportunity to get onto campus, and, once it gets there, it ought to get the same basic opportunities as other employers. “

Antonin Scalia:

You cannot convert a law into a law directed at the first… at first amendment rights, can you, by simply saying,

“The reason I am disobeying it is to express… whatever, disaffection with the war, my objection to homosexuality, or anything else… or to homosexual discrimination… or anything else? “

Does that convert it to a law directed against the first amendment?

Paul D. Clement:

Absolutely not, Justice Scalia.

And I would go further and say it’s also not a problem, if, in the real world, the conduct that Congress sought to regulate was, in fact, in practice, generated by first amendment concerns.

I think that describes O’Brien.

David H. Souter:

Well, in–

Sandra Day O’Connor:

Well, let me ask another question that may shed a little light on it.

Does the Solomon Amendment pose any restrictions on the extent to which the law schools can distance themselves from the military’s views?

Can there be signs up at every recruitment office, saying,

“Our law school doesn’t agree with any discrimination against gays? “

I mean, can they come forward with their position on this in every recruitment office without violation of the amendment?

Paul D. Clement:

Yes, they can, Justice O’Connor.

I think they would be, in fairness… I want to be clear… I think there might be a line where there would be… the recruitment office could conduct itself in a way that would effectively deny access.

But I think, with that caveat, there is–

John Paul Stevens:

But–

Paul D. Clement:

–nothing in the Act that prevents the universities–

John Paul Stevens:

–Let me ask you–

Paul D. Clement:

–from disclaiming–

John Paul Stevens:

–this question, to follow up on Justice O’Connor’s thought.

Can… are you saying that the school can engage in speech expressing its views about the military policies, can engage in symbolic speech by affording access, which is equal in all functional requirements, but yet sends a message that they are really disagreeing with what’s going on by, say… let a law school say,

“Well, for… most employers will let you use the regular law school placement facilities, but, for the military, we will require you use the college facilities to send a message that we disapprove, if the college facility is equally of… good, as a matter of functioning? “

Paul D. Clement:

–Well, Justice Stevens, I would say, to the… I think, the main thrust of your question, no, which is to say that if what you have in mind is really forcing them to go to the undergraduate campus, I think the military would take the position that that’s not equal in scope.

Now, if there’s a way, though–

John Paul Stevens:

But is it not equal because of the message it sends or because it denies the opportunity to recruit as effectively?

Paul D. Clement:

–It’s the latter, Justice Stevens, and only the latter–

John Paul Stevens:

What if I had an example where they were equal… equally effective as recruitment avenues.

Could they… could they make the military take one that was equally effective, but it sent a message,

“Well, we really don’t like what you’re doing? “

Paul D. Clement:

–I mean, my own–

John G. Roberts, Jr.:

Sort of like a separate but equal.

John Paul Stevens:

Yes.

Paul D. Clement:

–Well, I mean–

[Laughter]

–I guess I’m… I’m resisting a little bit just because I’m not… I think it would depend on the–

John Paul Stevens:

So, the–

Paul D. Clement:

–hypothetical.

John Paul Stevens:

–the point I’m trying to make is, Does your agreement, that you can engage in speech by posting banners or handing a note, apply to symbolic speech–

Paul D. Clement:

It could–

John Paul Stevens:

–the kind of conduct that is symbolic speech?

Paul D. Clement:

–It could apply to some symbolic speech, I believe.

It’s just… I’m having trouble, because, in a practical matter, if you look at the record here, I think it’s telling.

If you look, at joint appendix, at pages 215 and 219, describes the real situation at Boston College.

And they want to say that,

“Well, it’s not really much of an imposition on the military, because all you have to do is get the recruiting list from the reserve desk at the law library, and then go to– “

John Paul Stevens:

No, that’s a functional–

Paul D. Clement:

–the main campus, which is a mile and a half away.

Anthony M. Kennedy:

But the–

John Paul Stevens:

–That’s a functional difference.

Anthony M. Kennedy:

–the resistance to any statute, I assume, could be justified as symbolic speech.

Paul D. Clement:

Well, and I think… I mean, I’m… I think that some resistance by some parts of the university might be fine.

I think if the recruiting office… this is the caveat I tried to give Justice O’Connor… if the recruiting office engages in conduct that effectively negates the access that they’re providing, then I think you would have a different situation.

Ruth Bader Ginsburg:

–General Clement, can you be affirmative now?

Because we have an example, from Justice Stevens, which is the Yale example.

The… it was the main campus, instead of the law school.

What… the recruiter is there.

He’s in the same room that other recruiters use.

What can the law faculty do to disassociate itself from… to say that,

“We don’t tolerate discrimination of any kind? “

What can the law school do, concretely, while the recruiter is in the room?

Paul D. Clement:

I mean, concretely, they could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests.

I would draw the line, though, at saying that they have to go to the undergraduate campus, because I think, as a practical matter–

Anthony M. Kennedy:

You mean, they could organize a student protest at the hiring interview rooms, so that everybody jeers when the applicant comes in the door and the school could organize that?

Paul D. Clement:

–The school could–

Anthony M. Kennedy:

As… when it’s–

Paul D. Clement:

–organize–

Anthony M. Kennedy:

–when it’s, say, a job fair, and all the employers are there, but then they jeer just the… and the school organizes a line jeering the… both the recruiters and the applicants, that’s equal access?

Paul D. Clement:

–I think that would be equal access.

I think you have to draw a practical line–

Anthony M. Kennedy:

I’m surprised that–

Paul D. Clement:

–here between–

Anthony M. Kennedy:

–you think that–

Paul D. Clement:

–between access and allowing the speech, but I think it… you have to be–

Antonin Scalia:

You’re not going to be an Army recruiter, are you?

[Laughter]

Paul D. Clement:

–I don’t think the military and the Army recruiters… and I… and I won’t be one of them… but I think the Army recruiters are not worried about being confronted with speech, they’re worried about actually not being allowed onto the same law schools–

Anthony M. Kennedy:

–Well, worried about–

Antonin Scalia:

–having students driven off.

And if you have jeering and picketing, do you really think that that fulfills the purposes of this amendment?

Paul D. Clement:

–I don’t know if it would fulfill every purpose, but I think the amendment has to accommodate the first amendment–

Anthony M. Kennedy:

–You think if you–

Paul D. Clement:

–interests at–

Anthony M. Kennedy:

–have jeering–

Paul D. Clement:

–a university.

Anthony M. Kennedy:

–jeering and picketing if a black person came to recruit and people didn’t… and a school faculty didn’t like blacks?

Paul D. Clement:

Well, I think that would–

Anthony M. Kennedy:

I think that that’s an extraordinary position you’re taking.

Paul D. Clement:

–Well, but, Justice Kennedy, I think you have to distinguish what the Constitution would allow the Government to do and what this statute does, which is to say… I mean, what you have in mind is a–

Anthony M. Kennedy:

We’re talking–

Paul D. Clement:

–race example–

Anthony M. Kennedy:

–about the practical meaning of “equal access”.

Paul D. Clement:

–Right, but in… the practical meaning has to turn on the statute at issue.

And Title VI, for example, in the race context, forbids all discrimination because of race.

And so, some of the conduct that you have in mind may well violate that statute.

And if Congress wants to write a different statute that provides more rights to the military, we would be here defending it as valid first amendment legislation.

But this statute gives, not a right to be free of any discrimination, but a right to equal access.

And we think that the right way to frame that inquiry is say,

“Access, yes, but be respectful of speech. “

And the last thing I would say, if I could reserve the rest of my time for rebuttal, is simply that it’s worth remembering that the recruiting office is not the heart of first amendment activity on campus.

And if the recruiting office acts in a way that ensures access, and the rest of the university engages in speech, that’s a commonsense way to accommodate the interest of the military recruiters and the first amendment.

If I may reserve.

John G. Roberts, Jr.:

Thank you, General.

Mr. Rosenkranz, we’ll hear now from you.

E. Joshua Rosenkranz:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court–

This case is not about whether military recruiters will be barred at the campus gates.

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.

What Congress really wants is to squelch even the most symbolic elements of the law schools’ resistance to disseminating the military’s message, which is why it gave us the current version of the statute.

The current version isolates for regulation the most communicative aspects of the law schools’ resistance.

The law schools–

John G. Roberts, Jr.:

No, that’s–

E. Joshua Rosenkranz:

–are saying–

John G. Roberts, Jr.:

–I’m sorry, but the most communicative aspect is saying what you think about a particular policy.

This is conduct, denying access to the military recruiters.

E. Joshua Rosenkranz:

–Your Honor, this is a refusal to disseminate the messages of the military recruiters.

It is a refusal to send emails, host bulletins, and make arrangements for mutual exchange of ideas.

It is “conduct” only in the sense that they are moving molecules, but it’s speech that they are being forced to engage in.

And I have to emphasize, this case is not about entry.

The Solomon Amendment does not require schools to give entry to military recruiters, it requires them to give entry to a recruiter only if they provide entry to some–

John G. Roberts, Jr.:

Well, no that–

E. Joshua Rosenkranz:

–other employer.

John G. Roberts, Jr.:

–So, if you had a policy that,

“We’re going to deny any employer that uses tanks. “

do you think that would pass muster under the Solomon Amendment?

E. Joshua Rosenkranz:

Well, Your Honor, for a pacifist religious institution, absolutely.

John G. Roberts, Jr.:

What about Yale Law School?

E. Joshua Rosenkranz:

No, because it has no morally based, conscious driven reason for refusing to disseminate that message.

Antonin Scalia:

Oh, where do you find that?

In… it has to be a morally based, conscience driven–

E. Joshua Rosenkranz:

Well, Your Honor–

Antonin Scalia:

–I thought we were talking about freedom of speech, not the religion clauses.

E. Joshua Rosenkranz:

–Well, Your Honor, what I’m saying is, under the… under this Court’s jurisprudence in the first amendment, it’s actually relevant whether the reason for refusing to disseminate the message lies at the heart of the first amendment.

David H. Souter:

Well, is… what about Hurley?

Is there something deeply moral or conscience driven about the position to exclude the gay rights contingent in the parade, in Hurley?

E. Joshua Rosenkranz:

Well, Your Honor, it was certainly a reason that they gave, and it was based upon a political view of the legitimacy of homosexuality.

David H. Souter:

So, you’re–

E. Joshua Rosenkranz:

But I hasten to add, I’m not arguing that that is a required element of a compelled speech claim.

I’m simply arguing that when someone has a reason for resisting disseminating a message, that situates it further… closer to the heart of the first amendment.

Congress came back, after it–

David H. Souter:

–Well–

E. Joshua Rosenkranz:

–had a–

David H. Souter:

–Excuse me, that… I understand that, so far as the associational claim may go.

But so far as the speech claims may go, I don’t understand it.

E. Joshua Rosenkranz:

–Your Honor, I–

David H. Souter:

I can say, or refuse to say, anything I want to, for any reason I want to, however bad that reason, however nonmoral that reason is.

And I don’t see how, in the speech… on the speech claims, we get into moral basis at all.

E. Joshua Rosenkranz:

–Your Honor, I accept that as a proposition of the compelled speech doctrine, absolutely.

And what I’m trying to point out is that in this case what Congress has done is to engage in the most viewpoint oriented regulation of speech.

The reason Congress does not… the reason Congress is insisting that the law schools disseminate the recruiting messages is because of the message of the law–

John G. Roberts, Jr.:

But it doesn’t–

E. Joshua Rosenkranz:

–schools themselves–

John G. Roberts, Jr.:

–it doesn’t insist–

E. Joshua Rosenkranz:

–in providing–

John G. Roberts, Jr.:

–It doesn’t insist that you do anything.

It says that,

“If you want our money, you have to let our recruiters on campus. “

E. Joshua Rosenkranz:

–Yes, Your Honor, and, under the doctrine of unconstitutional conditions, the analysis is exactly the same.

John G. Roberts, Jr.:

Under… what about South Dakota against Dole?

South Dakota had a constitutional right, under the twenty first amendment, to set whatever drinking age it wanted, and yet we upheld the Spending Clause condition that if they accepted Federal funds, they had to set their drinking age at 21.

E. Joshua Rosenkranz:

Yes, Your Honor.

And in subsequent cases… and, in fact, in Dole itself… this Court pointed out that all bets are off when there is a superceding constitutional right.

Here, we’re talking about the Bill of Rights and the first amendment.

I mean, Rosenberger and Rust–

John G. Roberts, Jr.:

There’s the right to… in the Constitution, to raise a military.

E. Joshua Rosenkranz:

–Well, that is a Government interest, for sure.

All Government interests–

Anthony M. Kennedy:

What–

E. Joshua Rosenkranz:

–can be–

Anthony M. Kennedy:

–What you’re–

E. Joshua Rosenkranz:

–traced–

Anthony M. Kennedy:

–What you’re arguing is that what is, for all intents and purposes, “conduct” can be infused by the school, at its option, with a first amendment quality.

Yet your argument would allow schools to exclude anybody in uniform from a cafeteria.

E. Joshua Rosenkranz:

–Absolutely not, Your Honor, because–

Anthony M. Kennedy:

Why not?

E. Joshua Rosenkranz:

–because–

Anthony M. Kennedy:

What’s the point?

E. Joshua Rosenkranz:

–what the law schools are engaging in–

Anthony M. Kennedy:

It’s an express… it’s an… it’s solely for an expressive purpose.

E. Joshua Rosenkranz:

–Your Honor, there’s a difference between refusing to abide by a universally applicable regulation of conduct, on the one hand, and the Solomon on… Amendment, on the other hand, which is refusing to assist the dissemination of a message.

E. Joshua Rosenkranz:

Recruiting is all about speech.

Yes–

Antonin Scalia:

What do you–

E. Joshua Rosenkranz:

–it has–

Antonin Scalia:

–What do you do about the… about the cases where we have required colleges to allow some student activities to put forward their views on campus, when other student activities are allowed to do that?

It seems to me that that flatly contradicts the proposition that when you compel an institution to permit somebody else to speak, you are violating that institution’s first amendment rights.

E. Joshua Rosenkranz:

–Well, Your Honor, that is for public schools, and public schools are subject to the first amendment rights of those who want to enter their forum.

But there is a critical difference between that forum, Your Honor, which the schools opened up to everyone, and the forums in career services, which the schools filter on the basis of one very important–

David H. Souter:

No, but, Mr. Rosenkranz, isn’t the… I thought the distinction was that in determining the forum for recruiting, the university is speaking.

The university isn’t creating a forum from a lot… for a lot of third parties; it’s speaking, itself.

And I understand the essence of your claim to be that its speech is being affected, either by being mixed with something it doesn’t want to say or by being, in effect, forced to support it doesn’t… something it does not want to say.

E. Joshua Rosenkranz:

–Your Honor, it’s important to keep in mind that there are two messages going on here, and they are clashing.

There is the military’s message, which the schools are interpreting as,

“Uncle Sam does not want you. “

and there is the school’s message, which is,

“We do not abet those who discriminate. “

“That is immoral. “

And–

Ruth Bader Ginsburg:

And you would take, Mr. Rosenkranz, that same position.

If this was not special to law faculties… I mean, we’re told that the recruiters could go to the main campus; most of these places, the restriction is limited to the law faculties.

Suppose it was universitywide policy that we do not give equal access to military recruiters.

I think your argument says it doesn’t matter if it’s special to the law school or the whole university.

Do I understand it correctly?

E. Joshua Rosenkranz:

–Yes, Your Honor.

If the university had such a policy, then the university would be able to enforce it.

But I hasten to add–

Anthony M. Kennedy:

And so for members–

E. Joshua Rosenkranz:

–the university–

Anthony M. Kennedy:

–for medical schools, we can’t get medical schools for our Armed Forces… chaplains, the same way, because it… schoolteachers who teach on military bases… in order to make the point.

E. Joshua Rosenkranz:

–Your Honor, at this point, and for some–

Anthony M. Kennedy:

And that’s–

E. Joshua Rosenkranz:

–several–

Anthony M. Kennedy:

–that’s all for an expressive reason.

E. Joshua Rosenkranz:

–Justice Kennedy, for several decades, law schools have had these policies and applied them to career services offices.

No other schools within the–

Stephen G. Breyer:

But that isn’t–

Sandra Day O’Connor:

But–

E. Joshua Rosenkranz:

–universities.

Stephen G. Breyer:

–that isn’t relevant.

Sandra Day O’Connor:

–But the Government takes the position that the law school is entirely free to convey its message to everyone who comes.

E. Joshua Rosenkranz:

Yes, Justice O’Connor, and–

Sandra Day O’Connor:

So, how is the message affected–

E. Joshua Rosenkranz:

–Well–

Sandra Day O’Connor:

–in that environment?

E. Joshua Rosenkranz:

–let me answer in two parts.

First, of course, under the compelled speech cases, the ability to protest the forced message is never a cure for compelled speech violation, but–

John G. Roberts, Jr.:

But–

E. Joshua Rosenkranz:

–what’s going on–

John G. Roberts, Jr.:

–I’m sorry, but, on compelled speech, nobody thinks that these… law school is speaking through those employers who come onto its campus for recruitment.

Everybody knows that those are the employers.

Nobody thinks the law school believes everything that the employers are doing or saying.

E. Joshua Rosenkranz:

–That’s correct, Your Honor, but, again, endorsement is also not an element of compelled speech claim.

But let me… let me bring those two questions together on a factual point.

The law schools are disseminating a message that they believe it is immoral to abet discrimination.

When–

Sandra Day O’Connor:

But–

E. Joshua Rosenkranz:

–they–

Sandra Day O’Connor:

–they can say that to every student who enters the room.

E. Joshua Rosenkranz:

–And when they do it, Your Honor, the answer of the students is,

“We don’t believe you. “

E. Joshua Rosenkranz:

“We read your message as being that there are two tiers. “

“There’s a– “

Stephen G. Breyer:

Oh, there are–

E. Joshua Rosenkranz:

–“# double standard”–

Stephen G. Breyer:

–students–

John G. Roberts, Jr.:

The reason they don’t believe you is because you’re willing to take the money.

What you’re saying is, “This is a message”–

[Laughter]

“# we believe in strongly, but we don’t believe in it, to the tune of $100 million. “

E. Joshua Rosenkranz:

–That’s right, Your Honor.

And the problem with this Solomon Amendment is that the unconstitutional conditions doctrine says that you can’t put a private speaker to that crisis of conscience.

John Paul Stevens:

May I just be sure I have one thing straight?

The content of the compelled speech, as I understand it, is you’re aiding in the recruitment of the Armed Forces, right?

E. Joshua Rosenkranz:

That’s correct–

John Paul Stevens:

And so, it–

E. Joshua Rosenkranz:

–Your Honor.

John Paul Stevens:

–would still have been compelled speech if, 25 years ago, Congress passed a statute saying,

“University, you must allow our people on campus to recruit. “

and they some… for some reason, didn’t want to help.

But that would have been a violation of the first amendment of the school if there were no other debate, just they didn’t want the Army on because they had to provide facilities that would aid recruitment.

E. Joshua Rosenkranz:

Yes, Your Honor.

If it was… certainly, if it was against their conscience to do so–

John Paul Stevens:

So that it would have violated the first amendment during World War II when the… whenever they are trying to raise an army, if they had compelled an unwilling university to provide recruitment facilities to the military.

E. Joshua Rosenkranz:

–Well, yes, Your Honor, unless there is a compelling need.

And the difficulty with the Solomon Amendment–

John Paul Stevens:

Well, that be compelled speech, though, in your view.

That’s the kind of speech we’re talking about, anything that helps the military raise an army.

E. Joshua Rosenkranz:

–Anything that… not anything that helps the military raise an army; any communication that a school is required to engage in.

David H. Souter:

Okay.

John Paul Stevens:

So, why isn’t–

David H. Souter:

Isn’t that the point?

I mean, your point is not that… as I understand, that, for any reason, if the… if the university, for any reason, during World War II, had excluded recruiters, and there had been the equivalent of the Solomon Amendment, that there would have been a first amendment problem.

As I… is… maybe I don’t understand your argument, but I thought your argument was, or is, that if they do it for some purpose of conscience, which implies a message… e.g., if it is a pacifist college… there would be a first amendment problem.

But if they’re doing it simply because space is short and they would rather provide one more biology classroom, there wouldn’t be a first amendment problem, World War II or today, would there?

E. Joshua Rosenkranz:

That is absolutely right… correct, Justice Souter, which is why I answered your very early question with–

Antonin Scalia:

So, you–

E. Joshua Rosenkranz:

–an answer that is–

Antonin Scalia:

–are saying that–

E. Joshua Rosenkranz:

–by conscience–

Antonin Scalia:

–that every time somebody gives as his reason for violating a law that he wants to send a message that he disagrees with that law–

E. Joshua Rosenkranz:

–No, Your Honor.

Antonin Scalia:

–that raises a first amendment question.

E. Joshua Rosenkranz:

No, Your Honor.

Every time–

Antonin Scalia:

Well–

E. Joshua Rosenkranz:

–someone says that as a reason for refusing to host a message of an unwelcome messenger, that’s a compelled speech violation.

Stephen G. Breyer:

–So, in fact, to be clear, you also think schools that are angry at the military because they’re too favorable to gays in the military, they have the same right.

E. Joshua Rosenkranz:

Absolutely, Your–

Stephen G. Breyer:

Okay.

E. Joshua Rosenkranz:

–Honor, because–

Stephen G. Breyer:

And also the same right Bob Jones University, because they disapprove of social mixing of the races?

E. Joshua Rosenkranz:

–If… to answer the first hypothetical first, if that’s a matter of conscience, absolutely–

Stephen G. Breyer:

All right, so–

E. Joshua Rosenkranz:

–if we’re talking–

Stephen G. Breyer:

–so, what… and there are a lot of people in the country, they may… there’s few, anyway… may not believe in either affirmative action, they may not believe in… they may not believe in diversity, they may not… they may even believe in racial segregation, for all I know.

I hope there are not too many–

E. Joshua Rosenkranz:

–Your Honor–

Stephen G. Breyer:

–but there might, and those people all have the same right.

E. Joshua Rosenkranz:

–Well, they have the same first amendment right.

Stephen G. Breyer:

Yes, okay.

Stephen G. Breyer:

So, if that–

E. Joshua Rosenkranz:

But–

Stephen G. Breyer:

–if that’s the case, then of course it’s going to be pretty tough–

E. Joshua Rosenkranz:

–But, Your Honor, the–

Stephen G. Breyer:

–for the military to get people on campus.

And I just wonder, if that’s an important need, 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.

E. Joshua Rosenkranz:

–Your Honor, the problem with the Solomon Amendment is that the Government is demanding absolute parity.

We have a statute before us that demands exactly the same services, without regard to whether the military actually needs them.

In order for Congress to justify the parity requirement, which is the only statute before this Court, Congress has to state a need.

It has to say why it needs what–

Antonin Scalia:

–Here’s a need.

How about this?

We have said in our opinions… and I am quoting from Rostker versus Goldberg…

“Judicial deference is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. “

And that’s precisely what we have here.

E. Joshua Rosenkranz:

–Your Honor, this Court defers to Congress, in matters of the military, when the military or the Congress is especially expert and this Court is especially naive.

This Court has never deferred to a congressional statute about military when–

Antonin Scalia:

I don’t think it has to do with expertise.

I think it has to do with immense national importance.

E. Joshua Rosenkranz:

–Your Honor, it has to do with expertise, as well.

That’s precisely what this Court–

Stephen G. Breyer:

But I would–

E. Joshua Rosenkranz:

–said in Rostker.

Stephen G. Breyer:

–I would like the answer to my question, because I’m thinking, as you correctly say, if you have that right, so do all the worse segregationists you can imagine, et cetera.

E. Joshua Rosenkranz:

And the–

Stephen G. Breyer:

And here… yes, and here there is a need of some kind to get the military in.

And what the Government in this statute asks you… because I, personally, couldn’t find anything in the record that finds that student who thinks, by letting the military person in, that that school, which basically is completely against the military in this area, suddenly becomes for it.

And I haven’t even found in the record an instance where there was a recruiter who told people that they couldn’t join the military if they were gay.

E. Joshua Rosenkranz:

–Well–

Stephen G. Breyer:

So, we have not a tremendous demonstration there of a need on the university side.

Stephen G. Breyer:

And my question was, What’s wrong with the Government saying,

“University, you disapprove of what we do. “

“The remedy for such a situation is not less speech, it is more speech. “

E. Joshua Rosenkranz:

–Your Honor, the–

Stephen G. Breyer:

You can go and explain.

E. Joshua Rosenkranz:

–the direct answer to that last question is that all bets are off when what the Government is doing is compelling the speech of a private actor, because the Government is not allowed–

Ruth Bader Ginsburg:

Does it compel the speech of a private actor when the Government says,

“Colleges and Universities, you are not going to get Federal money if you discriminate on grounds of race or gender. “

“And we don’t care what your private attitude may be, we will refuse to contract, we will debar you from future contracts, if you don’t… not only say, ‘We won’t discriminate, ‘ but have an affirmative action plan. “

You know that is not hypothetical.

This was the U.S. policy in the early ’70s.

Paul D. Clement:

Yes, Your Honor.

I understand the hypothetical, at least… especially as to the first half, which links to Justice Breyer’s earlier question.

There is an enormous difference, under this Court’s jurisprudence, between antidiscrimination laws and the sort of law we have here, the Solomon Amendment.

And the difference is, the Government… it is both on the need side and on the infringement side.

On the need side, the Government has a compelling interest that is different from just regulating the conduct.

The compelling interest that the Government has is a completely separate interest in seeing to it that not a penny of Federal money ever goes to support an institution that taxpayers would not be in a position to go to.

That’s Bob Jones and Norwood.

And, on the infringement side, this Court has said, that the act of discriminating against individuals is entitled to no first amendment protection, regardless of whether there’s a first amendment right at stake.

And I should add, also, that the vast majority of schools that are subject to Title VI or to Title IX have no such expression that is at stake.

They are not articulating a message,

“We really need to discriminate on the basis of race or on the basis of gender. “

Antonin Scalia:

Mr. Rosenkranz, could you tell me which elements of your argument rest upon compelled actual speech and which rest upon compelled symbolic speech?

Because the latter, I have to tell you, I’m not very fond of.

What compelled actual speech is imposed on the… you mentioned something about emails, they have to send emails to say where the recruiter will be located–

E. Joshua Rosenkranz:

–Well–

Antonin Scalia:

–is that the compelled speech you’re worried about?

E. Joshua Rosenkranz:

–It is… Your Honor, it is the forced hosting of a messenger based decision–

Antonin Scalia:

Well, that’s symbolic speech.

I’m talking about actual speech.

Antonin Scalia:

What expression is the university… real, you know, words… words… is the–

E. Joshua Rosenkranz:

–Well, but–

Antonin Scalia:

–university–

E. Joshua Rosenkranz:

–with the–

Antonin Scalia:

–compelled to utter by this legislation?

E. Joshua Rosenkranz:

–Under the parity requirement, what the university is compelled to do is sit down with the employers and help counsel them on what their students are interested in and how best to shape the message.

The Third Circuit went out of its way to point out that, and the National Association for Law Placement brief is very compelling on that.

They also have to disseminate literature, post bulletins on bulletin boards, help the recruiter… or, excuse me, the law firm develop cocktail parties–

Antonin Scalia:

No, I suppose when you… when the police knock at the door and say, you know, “I have a warrant”, I suppose somebody has to say, “Come in”.

Is that compelled speech?

Does that–

E. Joshua Rosenkranz:

–No, Your Honor, there are–

Antonin Scalia:

–Does that… does that raise a first amendment problem?

E. Joshua Rosenkranz:

–It does not.

And there are many circumstances in which words are used that are incidental to an action.

These are not words used that are incidental to the action.

Anthony M. Kennedy:

What’s happening here is the perspective employers, the recruiters, are proposing a commercial transaction.

And it seems to me quite a simple matter for the law schools to have a disclaimer on all of their emails 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. “

E. Joshua Rosenkranz:

Your Honor–

Anthony M. Kennedy:

That’s the end of it.

E. Joshua Rosenkranz:

–no matter what the Government does, it cannot convert the career services enterprise into value neutral proposition.

For the law school, from its perspective, it’s especially value driven.

Yes, the–

Anthony M. Kennedy:

Do law schools have an interest in the Constitution that other people don’t?

E. Joshua Rosenkranz:

–Your Honor, I’m not claiming any exceptionalism for the law schools.

The AAUP brief does–

Anthony M. Kennedy:

All right.

Well, I–

E. Joshua Rosenkranz:

–a brilliant job–

Anthony M. Kennedy:

–I suppose, under your view, law schools really shouldn’t permit firms… law firms on campus if those firms, say, oppose… take litigation positions opposing gay marriage.

E. Joshua Rosenkranz:

–Your Honor, as Dale points out, it’s up to the private institution to decide what its metrics–

Anthony M. Kennedy:

That’s–

E. Joshua Rosenkranz:

–are going to be.

Anthony M. Kennedy:

–That’s your position.

Your position is, the schools could, and probably should, do that to make their message known.

E. Joshua Rosenkranz:

My position, Your Honor, is that the schools are entitled to make their own judgments about what messages they will disseminate.

And even–

John G. Roberts, Jr.:

Dale is… Dale–

Anthony M. Kennedy:

Even with reference to commercial… proposed commercial transactions?

E. Joshua Rosenkranz:

–Yes, Your Honor.

But, I would hasten to add, that is not what recruiters are doing.

It is no more commercial than what United Foods was doing in an… advertizing, saying… or resisting the message, “Mushrooms are good”.

Stephen G. Breyer:

Do you agree with the Government, that the statute, as fairly interpreted, is violated when a school which uniformly applies to all employers the rule,

“You can’t come in if you have the discrimination against hiring gay people? “

E. Joshua Rosenkranz:

Yes, Your Honor.

John Paul Stevens:

–You agree that it is violated.

E. Joshua Rosenkranz:

Yes, Your Honor.

The statute focuses on the manner of providing access; and the manner of providing access is through the career services–

Ruth Bader Ginsburg:

Would you require any accommodation… I mean, you have said,

“It’s up to the faculty to choose which causes to assist. “

–I think you put it that way, or one of the amici did… “and which to resist”.

And you’ve already told me that this happens to be the law school, could be the whole university.

Could the law faculty, or the university, take the position,

“We’re not going to… we don’t like your message, and we are not going to let you have any of our facilities. “

“We’re not going give you the room on the main campus. “

“Just a total bar? “

E. Joshua Rosenkranz:

–Your Honor, we’re certainly not advancing that position here.

The Solomon Amendment requires no such thing.

The Solomon Amendment does not require that schools give entry to military personnel.

Ruth Bader Ginsburg:

No, but a school–

E. Joshua Rosenkranz:

It says you must do it only if the other guy does it.

Ruth Bader Ginsburg:

–a school, as a matter of its own policy says,

“We don’t like discrimination, and we’re not going to give discriminators access to any of our facilities, period. “

E. Joshua Rosenkranz:

Your Honor, are… you’re asking me what I would be arguing for my clients if they were actually making–

Ruth Bader Ginsburg:

I’m asking–

E. Joshua Rosenkranz:

–taking that position?

Ruth Bader Ginsburg:

–you, Is there any obligation, since you’ve said there is a compelling State interest… compelling Government interest in recruiting, is there some obligation to accommodate, or could the faculty just say,

“We choose the causes that we assist and the ones we resist? “

E. Joshua Rosenkranz:

And that is as to entry to campus, Your Honor?

You’re–

Ruth Bader Ginsburg:

Yes.

E. Joshua Rosenkranz:

–asking if… we are not pressing this point to the Court.

If the Court is asking what my opinion would be if I–

Ruth Bader Ginsburg:

I’m asking–

E. Joshua Rosenkranz:

–were a judge–

Ruth Bader Ginsburg:

–is the… if it logically follows, from your position, about

“choosing the causes we resist and the ones that we assist. “

E. Joshua Rosenkranz:

–Your Honor, if I were advancing that argument, it would be, this is a viewpoint discriminatory statute which is subject to strict scrutiny.

The Government is advancing a single message, and, even when the first amendment rights that are at stake are minimal under this Court’s opinion in R.A.V., strict scrutiny would apply.

The Government has never come forward which a shred of evidence that it actually needs to be on campus, as opposed to directly off campus, or as opposed to publishing notices in student publications, or advertizing.

But–

John Paul Stevens:

When you–

E. Joshua Rosenkranz:

–we are not advancing–

John Paul Stevens:

–were talking about–

E. Joshua Rosenkranz:

–that argument.

John Paul Stevens:

–the government’s message, the message is, “Join the Army”.

Is that right?

E. Joshua Rosenkranz:

Yes, Your Honor.

The message is, “Join the Army”.

E. Joshua Rosenkranz:

What the schools hear is–

John Paul Stevens:

And that’s a viewpoint discriminatory message.

E. Joshua Rosenkranz:

–No, I’m sorry.

The viewpoint discrimination, Your Honor, is in the congressional statute that says,

“We will force you to host a single speaker with a single message. “

just as in Pacific Gas–

John Paul Stevens:

The single message is, “Join the Army”.

E. Joshua Rosenkranz:

–I’m sorry, Justice Stevens, I didn’t–

John Paul Stevens:

The single message is, “Join the Army”.

E. Joshua Rosenkranz:

–The single message is, “Join the Army”, that is correct.

And the Government is promoting only that one message.

But this–

David H. Souter:

I thought your argument was, the single message is,

“Join the Army, but not if you’re gay. “

E. Joshua Rosenkranz:

–Yes, Your Honor–

David H. Souter:

And–

E. Joshua Rosenkranz:

–that is–

David H. Souter:

–which leads me to the question, in response to your answer to Justice Ginsburg a moment ago, in your view is the compelling interest on the part of the Government recruitment or the refusal to accept gays?

E. Joshua Rosenkranz:

–The compelling interest on the Government’s side is the recruitment interest.

We’re not arguing that the Government has a compelling interest in excluding anyone.

That’s precisely why–

David H. Souter:

No, but, are you–

E. Joshua Rosenkranz:

–the law–

David H. Souter:

–are you saying that the Government… that the only compelling interest argument that the Government can raise here is the discriminatory argument?

Since nobody denies that, if the Government were recruiting without the discrimination, that there would… there would… there would be no problem with it.

Everyone would agree with… that that was a compelling–

E. Joshua Rosenkranz:

–Well–

David H. Souter:

–interest.

But, I thought your argument on compelling interest was that the only compelling interest that the Government can assert is the discriminatory interest.

E. Joshua Rosenkranz:

–No, Your Honor, what I’m saying is, if the Government wants to assert a need, it has to identify the need.

E. Joshua Rosenkranz:

It has to say,

“We need more than contact information. “

“We need more than a room… entry to campus… a room on campus, a posting on a bulletin board. “

“We need everything. “

The story of the Solomon Amendment, Your Honor, is the story of private institutions trying desperately to accommodate the Government’s need, even in light of their own moral scruples.

Stephen G. Breyer:

Well, the speech is on their side.

The Government just says, “Let our recruiters in”.

So, why isn’t it sort of like, “Pay the property tax”?

“I don’t want to. “

“I hate the government. “

E. Joshua Rosenkranz:

Well, Your Honor–

Stephen G. Breyer:

“# I’m withholding the money because I want to express my message. “

E. Joshua Rosenkranz:

–The speech is on both sides, because the schools are being forced to host the Government’s message.

The–

Stephen G. Breyer:

The message is, “Join the Army”.

The–

E. Joshua Rosenkranz:

–The message–

Stephen G. Breyer:

–message of the property tax is,

“Pay the… pay for the– “

E. Joshua Rosenkranz:

–The message–

Stephen G. Breyer:

–“# Government’s expenses”.

E. Joshua Rosenkranz:

–The message that the schools are hearing is,

“Join the Army, but not if you’re gay. “

And the schools have been trying desperately to accommodate the Government, up until the point where Congress says,

“We don’t actually want any of those things. “

“We want them only if you supply them to someone else. “

“We want them only if you have viewpoint based reason that you don’t want to give it to us. “

There’s some reason in the law school’s conscience, or the academic institution’s conscience, that it wants to treat this category of employers differently from any other.

Congress’s–

John G. Roberts, Jr.:

–And you… and you’re perfectly free to do that if you don’t take the money.

E. Joshua Rosenkranz:

–Your Honor, Congress, here, is imposing a sanction, which this Court has treated as exactly the same as a penalty.

When–

Antonin Scalia:

Suppose that a law school faculty could decide that it does not favor a particular war, and use that as the basis for excluding recruiters,

“By allowing this recruiter to come on campus, you are making me speak, in effect, to our students, saying, ‘Join the Army and fight the war that we’re now engaged in. “

“‘. “

E. Joshua Rosenkranz:

–Your Honor, again, we’re not–

Antonin Scalia:

“And I don’t want to do that. “

Now–

E. Joshua Rosenkranz:

–We are not talking about–

Antonin Scalia:

–what would be the difference?

E. Joshua Rosenkranz:

–coming on campus.

We are talking about affirmative assistance to the highest degree–

Antonin Scalia:

Yes, okay–

E. Joshua Rosenkranz:

–in disseminating the–

Antonin Scalia:

–fine.

I’m saying the same thing.

E. Joshua Rosenkranz:

–The answer is yes, Your–

Antonin Scalia:

But I’m saying–

E. Joshua Rosenkranz:

–Honor.

Antonin Scalia:

–you would say that the same situation would apply if the university faculty does not favor the particular war that the United States is–

E. Joshua Rosenkranz:

Yes, Your Honor.

Antonin Scalia:

–engaged in, and, therefore, obstructs the effort to raise–

E. Joshua Rosenkranz:

Your Honor–

Antonin Scalia:

–an army–

E. Joshua Rosenkranz:

–it’s very–

Antonin Scalia:

–by not allowing them to come on campus.

E. Joshua Rosenkranz:

–It is very important to distinguish obstruction from refusal to subsidize, which, at the Government’s instance, this Court has been doing for 30 years, both–

Antonin Scalia:

It’s obstruction when you refuse to give them what you give what you give everybody else.

E. Joshua Rosenkranz:

–It is refusal to treat them the same as everyone else, because they are not the same as everyone else in the law schools’ estimation.

And the Government–

Antonin Scalia:

–fighting a war.

E. Joshua Rosenkranz:

–Well, the Government has to identify precisely what its need is, why it needs Yale college personnel rather than Yale… excuse me… why it needs Yale law school personnel rather than Yale college personnel–

John Paul Stevens:

May I ask you–

E. Joshua Rosenkranz:

–to make the appointments.

John Paul Stevens:

–this question, with that very point in mind?

Does it necessarily follow, if there are occasional applications of this statute that might be invalid, that the whole Solomon Amendment needs to be struck down?

E. Joshua Rosenkranz:

Your Honor, the… this is not about application of the statute in one circumstance.

The whole statute has to be struck down, because the Government is demanding absolute parity and there’s no way for this Court to rewrite the statute.

We don’t know whether Congress would go back and go to the entry requirement, just bear entry, to entry plus, or to a parity requirement, which is… which it has now shifted to.

So, there is simply no way to know exactly how Congress would rewrite the statute.

But this is, at its heart, an as applied challenge.

It’s about law schools with nondiscrimination policies.

John G. Roberts, Jr.:

Thank you–

E. Joshua Rosenkranz:

Thank you–

John G. Roberts, Jr.:

–Counsel.

E. Joshua Rosenkranz:

–Your Honors.

John G. Roberts, Jr.:

General Clement, you have 4 minutes remaining.

Paul D. Clement:

Thank you, Mr. Chief Justice.

I’d like to make just a few points in rebuttal.

First of all, in starting with the compelled speech problem, there are only two kinds of speech that are at issue here.

First, there is the compelled speech of the military recruiters.

And no one thinks that that speech is being misattributed to the schools.

Even in the secondary school context, in Mergens, this Court understood that secondary students could distinguish between the school’s message and that of school groups.

Now, the second piece of speech that’s at issue is that of the university, when they incidentally send an email around telling the students where the military recruiters are going to be on a certain day.

And certainly in the context of recruiting, that kind of incidental speech does not implicate any compelled speech doctrine.

In the Title VII context, for example, if an employer says that there’s a job opening, and says that to a white applicant, it has to say the same thing to an African American applicant.

Nobody would think that that other… saying that to the African American applicant, which is, of course, compelled speech by Title VII, violates the Constitution.

I would also say, just as the last point on compelled speech, that it’s something of a stranger in a strange land in the context of this case, since we are talking about a funding condition, not a compulsion.

Second, let me move to the argument that the Respondents have about trying to distinguish this case from Justice Stevens’ World War II hypothetical.

And, as I understand it, it boils down to the argument that the way that the legislature was reacting here to this problem and observing what it observed on campus somehow implicates different constitutional issues, different first amendment issues.

Paul D. Clement:

And I think the O’Brien case stands as an obstacle to that argument.

In that case, if you look at it, the argument was exactly the same.

There already was a prohibition that required you to have your draft card with you.

Congress then passed a second statute that prohibited burning your draft card.

Now, what did the Representatives say about that?

Well, Representative Bray, of Indiana, said that this was an effort to get at “communist stooges and beatniks”.

Now, this Court did not strike the statute down on that basis.

It looked at the text of the statute and upheld the statute as a reasonable statute.

Let me also, then, move to what you could call the “Bob Jones problem”.

And I think you have to have be cautious about interpreting this statute in applying a rule and having it come back in the context of other statutes that even the law schools like, like Title VI and Title IX.

I don’t think it’s enough to simply say that race is going to be different.

For one thing, Federal statutes also prohibit, as a condition on funding, universitywide discrimination on the basis of disability and on the basis of age.

Now, those aren’t things that trigger heightened scrutiny, and I think one has to be worried about converting this rule in this case to something that’s going to threaten those statutes.

This Court, in Hishon, for example, made the point that all discrimination can be recharacterized as somebody simply saying… exercising their associational rights,

“I don’t want to associate with you, because you’re female. “

in Hishon.

You have to be leery of that kind of recharacterization.

The last point I would make is that there’s simply no limit on Respondent’s argument in this case.

I don’t think their matter of conscious limitation is going to be enforceable by the courts.

And, beyond that, I think, even in this case, there is more at issue here than just the military’s policy on homosexuals.

If you look at the original statement of the American Association of Law Schools… which is in the joint appendix at 246 and 249… they were concerned, first and foremost, about the military’s policies on homosexuals, but also about the discrimination in sex, on what kind of combat roles that women could have, what they call career advancing positions.

So, even if Congress changed “don’t ask, don’t tell” tomorrow, the… presumably, the law schools would still be here protesting the military’s position on gender, or perhaps the war in Iraq, or perhaps the war in Afghanistan.

And the last point in showing there is no limits on their position is, as Justice Kennedy pointed out, any conduct can be imbued with communicative force just by saying,

“We’re opposed to this, and, therefore, we’re going to engage in this conduct. “

That’s simply not enough to generate a significant first amendment interest.

Thank you.

John G. Roberts, Jr.:

Thank you, General. The case is submitted.