Several universities receiving federal funding, including Yale, are planning for the possibility that they may be compelled to facilitate military recruiting at their law schools, after a tough questioning at a Supreme Court hearing last month left observers doubting that the schools will be able to deny help on the basis of their anti-discrimination policies.
The court is not expected to make a decision for months, but several justices appeared to take a tough stance against law school representatives during oral arguments, legal experts said. If the court rejects the schools’ case, the government may force Yale and other universities to facilitate recruitment efforts by threatening to withhold federal funding, which in Yale’s case tops $350 million. The schools’ contingency plans, if their case is rejected, include a series of protests against the military’s “don’t ask, don’t tell” policy in an effort to test the government’s commitment to their freedom of speech, a representative for the group of law schools said.
The case, brought before the Supreme Court by a coalition of law schools known as the Forum for Academic and Institutional Rights, is expected to heavily influence a separate but similar lawsuit brought by a group of Yale professors. The professors claim that the military’s practices regarding homosexuals violate the school’s anti-discrimination policy.
Yale’s case could be in jeopardy if the hearing last month is indicative of the Supreme Court’s attitude, said Rudy Kleysteuber ’07, who co-chairs the Students/Faculty Alliance for Military Equality at Yale.
“Unfortunately, the justices seemed not to be leaning against FAIR’s arguments,” he said. “I wouldn’t say that we’re pessimistic, but the oral arguments gave us no cause for celebration.
But even if the court sides against FAIR, Kleysteuber said, Yale’s case might still be kept alive, depending on the finer points of the justices’ decision.
While the case could swing either way, the government appears to have strong support among the more conservative justices, said Mark Moller, a Supreme Court expert at the Cato Institute.
“You clearly have a core of conservatives who don’t like FAIR’s positions, and you don’t have a core that’s similarly in favor of FAIR,” he said. “Going out of oral argument, I think that’s something FAIR should be nervous about.”
Moller said liberal justices who might otherwise support FAIR seem worried that rejecting the government’s authority to withhold federal funding in this case might also undermine Title IX, which compels schools to provide a non-hostile environment to women through equal opportunity programs. Both laws empower the government to use funding to regulate the exchange of ideas on campus, which seems to make the left-leaning judges wary of undermining the government’s leverage, Moller said.
But FAIR President Kent Greenfield said the tenor of the judges’ questions might not indicate their positions.
“It was pretty clear that they were questioning our side pretty hard, but it’s impossible to tell [the outcome],” he said.
The law schools are exploring their options in case the court decides against them, Greenfield said. If the justices were to decide in the government’s favor based on facts rather than principles alone, then FAIR could still go to court to contest facts that the government raised in its argument. Specifically, the Office of the Solicitor General said last month that it supported the universities’ right to protest the military recruiters as long as the protests did not infringe on the recruiters’ activities.
Greenfield said the government’s statement in court misrepresented its attitude toward protests in the past. If the court rules against FAIR, then law schools may organize large demonstrations to test the administration’s claim.
“The actual history of the case is that protest is one of the things that gets law schools put on the Department of Defense’s list,” Greenfield said. “If we end up losing, as most reporters seem to think we will, then a lot of law schools will take the Solicitor General at his word and start protesting more than they have been.”
But Moller said the law schools’ intended approach could do more harm than good. Law schools currently engage in harmless and symbolic forms of protest, he said, such as placing recruiters in a library instead of a school career center. The schools will begin teaching the wrong lesson if they instead organize large rallies to jeer at recruiting candidates, he said.
“[The Solicitor General's statement] is a much greater incentive for schools to teach lessons that aren’t as gentle and could be counterproductive,” Moller said.
Based on the justices’ questions at the oral hearing, Greenfield said the court’s decision will likely hinge on whether law schools can freely express their opinions on “don’t ask, don’t tell” while simultaneously aiding military recruiters. The Department of Defense has said the schools can cooperate and still get their message across.
“I think a recruiter should be able to recruit on campus, but the law school should be able to stress their opinion towards it as well, so it should be an open dialogue,” said Capt. Ryan Olivieri, who e-mailed a Marine recruitment letter to Yale students Tuesday.
Though some schools have already had to aid recruiters to avoid losing their government grants, Yale’s federal funding is temporarily protected by a district court injunction.