For more than 10 years, the two sides have circled one another as Congress pulled the noose ever tighter in the form of a threatened withholding of federal money from noncompliant universities. A showdown in the Supreme Court appeared inevitable, and on Tuesday it finally took place.
The result was a lopsided argument during which the justices appeared strongly inclined to uphold a federal law known as the Solomon Amendment, which withholds federal grants from universities that do not open their doors to military recruiters "in a manner at least equal in quality and scope" to the access offered civilian recruiters.
Or as Chief Justice John G. Roberts Jr. put it succinctly: "It says that if you want our money, you have to let our recruiters on campus."
The constitutional question was one of free speech and association. The federal appeals court in Philadelphia, ruling last year in a lawsuit brought by a coalition of some three dozen law schools, barred enforcement of the Solomon Amendment on the ground that it forced the schools to "propagate, accommodate and subsidize the military's expressive message" of disapproval of homosexuality despite the law schools' commitment to equal rights for their gay students.
Since 1991, the American Association of Law Schools, which includes 166 of the 188 accredited law schools, has required its member schools to insist that prospective employers agree to a policy of nondiscrimination on grounds that include sexual orientation. As law schools began to bar military recruiters, Congress responded with a series of amendments to military spending bills. While the measures were addressed to universities, and not specifically to law schools, it was the law schools that were the source of resistance.
At first, Congress provided only that Defense Department grants would be withheld. Eventually, it added a long list of federal agencies and made clear that a denial of access by any part of a university would jeopardize federal grants to the entire university. At this point, with the stakes so high, law schools began to give in, many complying grudgingly by relegating military recruiters to off-campus locations. Congress responded last year by adding the provision that requires not only access, but equal access.
In the argument on Tuesday, the 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."
The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.
This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.
"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.
"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."
Earlier, Solicitor General Paul D. Clement had assured the justices that the Solomon Amendment permitted law schools to be clear, even outspoken, in their disagreement with the military's policy.
Asked by Justice Ruth Bader Ginsburg what a law school "could do concretely while the recruiter is in the room," Mr. Clement replied that as long as the school granted equal access, "They could put signs on the bulletin board next to the door. They could engage in speech. They could help organize student protests."
Justice Anthony M. Kennedy indicated that he thought Mr. Clement was conceding too much. "You mean they could organize a student protest at the hiring interview room, so that everybody jeers when the applicant comes in the door?" he asked, adding, "I'm surprised."
Justice Antonin Scalia asked, smiling, "You're not going to be an Army recruiter, are you?"
"I won't be one of them," the solicitor general replied, "but I think the Army recruiters are not worried about being confronted with speech" as long as they had the same access as other recruiters.
At the beginning of the government's argument in the case, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, several justices challenged Mr. Clement's assertion that the military was simply seeking equal access. These justices, reflecting an argument in a brief filed by a group of Harvard Law School professors, noted that requiring all recruiters, including the military, to accept a nondiscrimination policy would, in fact, amount to equal treatment and so would satisfy the Solomon Amendment.
"You're receiving what other employers in the same situation would receive," Justice Scalia told Mr. Clement. Interpreting the statute in that way would "avoid a difficult constitutional question," Justice Stephen G. Breyer said.
Mr. Clement replied, "I don't think there's a difficult constitutional question to be avoided here." He urged the justices to avoid the conclusion "that the statute effectively accomplishes nothing."
With both sides clothing their arguments in the language of nondiscrimination, it became clear that the nondiscrimination principle cuts in more than one direction. Justice Breyer suggested to Mr. Rosenkranz that a victory for the law schools might also provide a constitutional basis for others to object to abiding by other federal antidiscrimination laws.
"They also have the same right, Bob Jones University, because they disapprove of social mixing of the races?" Justice Breyer asked, referring to the Greenville, S.C., university that lost its tax-exempt status because of its racial policies in a Supreme Court case 25 years ago.
Mr. Rosenkranz tried to argue that the government could demonstrate a compelling need to eradicate racial discrimination.
But the military has needs of "immense national importance" also, Justice Scalia said.
In the end, it appeared that the law schools' ability to distance themselves from the military, even while yielding to the demand for access, was sufficient in the justices' minds to save the Solomon Amendment.
"It seems to me quite a simple matter for the law schools to have a disclaimer on all of their e-mails 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," Justice Kennedy told Mr. Rosenkranz. "That's the end of it," he said.
And Justice Breyer asked "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."