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Slate's Jurisprudence: Military Recruiters on Campus


From the studios of NPR West, this is DAY TO DAY. I'm Noah Adams.


And I'm Madeleine Brand. Coming up, stepping up efforts to rescue endangered mine workers.

ADAMS: But first, if a college or university takes money from the federal government, it must also allow military recruiters on campus. That was the unanimous decision today of the U.S. Supreme Court.

The law had been challenged by schools that argued that the Army's controversial don't ask, don't tell policy discriminates against gay students. Joining us to talk about the decision is Dahlia Lithwick. She covers the Court for the online magazine, Slate, and for DAY TO DAY.

Dahlia, Congress mandated that recruiters be allowed on campus in what's known as the Solomon Amendment. Now remind us here, please, what constitutional argument the schools made in challenging this law.

DAHLIA LITHWICK (Legal Analyst, Slate Magazine): It was pretty straightforward, Noah. Essentially, the schools said they have their own anti-discrimination policies--that they would not allow any recruiter from any entity, from any private firm or anything else, to come on campus and recruit if they discriminated against gays or women or anyone else.

Essentially, the schools were saying, we have this sense of who we are, and who we are as an inclusive, non-discriminating family. And when the military comes onto campus with their don't ask, don't tell policy, which they see as discrimination towards gays, that violates the sense of what the school is.

Moreover, when a school has to host those recruiters, they're forced to, sort of, speak. They're forced to, sort of, send out emails on behalf of those recruiters, so that the discriminatory speech, in effect, becomes their speech. So, they were making a free speech and a free association claim.

ADAMS: The schools notify the people that the recruiters are they, right, coming out?

Ms. LITHWICK: Right. I mean, there's all sorts of things. They have to send out emails. They have to put up boards. They have to provide space. And the school said, this is the military forcing us to send a message that we don't endorse. You're forcing us to carry a message that offends our gay students.

ADAMS: I mentioned the court--this decision was unanimous. The decision was written by Chief Justice John Roberts. How did it respond to the schools' argument?

Ms. LITHWICK: Well, the court felt, look, this is not forced speech. This is not forced association. This is someone who is coming on your campus and then leaving. So, it's not someone who's in your midst for ever offending you.

And most pointedly, I think, this is really important, that the defense department must raise up armies. And this is just a crucial part of what they do. And so, for schools to essentially discriminate against the military in supporting their own anti-discrimination policies makes no sense.

ADAMS: No dissenting opinions here. Any surprise about that?

Ms. LITHWICK: Not really. I mean, I think, you know, after hearing argument, it was sort of a question as to whether maybe the colleges wouldn't get one or two votes. But in oral argument, it was quite clear, even the liberal justices were just not exercised by this policy.

ADAMS: So, what effect for college freedoms and gay rights in the future, do you think?

Ms. LITHWICK: I think it's really important to understand, Noah, that this is not necessarily a gay rights case. And while, of course, it does implicate, you know, a college's freedom to send out a message of inclusiveness, it isn't a case that's a huge setback, I don't think, for gay rights.

It was just too attenuated, the claims being made. And I think that the reason the majority felt so strongly about this case was because it wasn't like some of the other gay rights cases.

There was another important issue here, which was we're at war, and we need to be able to raise up armies. And I think in many, many senses, it's important to think about this case as a case about, you know, the government's freedom to spend its money as it chooses. And if schools don't like it, don't take the money.

ADAMS: Opinion and analysis from Dahlia Lithwick. She covers the Courts for the online magazine, Slate, and for DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Noah. Transcript provided by NPR, Copyright NPR.