Paul Greenberg

It shouldn't have come as a surprise when the U.S. Supreme Court came down firmly on the government's side in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) - not after the justices had given short shrift to the other side during the oral arguments. That was the side of some of the country's most prestigious, ivy-covered law schools.

The result of this difference of legal opinion was summed up masterfully by the headline over The Wall Street Journal's editorial on the subject: "Army 8, Yale 0."

(What about the ninth member of the court? The court's newest member, The Hon. Samuel Alito, got to the game too late to participate in the court's deliberations.)

The scrimmage line had formed some years back when Congress passed the Solomon Amendment cutting off federal funds for universities that refused to let the military recruit at their law schools. The law schools demurred, claiming any such penalty was unconstitutional. Their theory of the case, not to put too fine a point on it, was that the universities should be able to go on receiving U.S. dollars even if their law schools barred the U.S. military from their hallowed precincts. That's not just creative thinking, it's real nerve.

But the Supremes weren't impressed. At least not in a good way. By the time he was through handing down the court's unanimous opinion, its still new chief justice - John Roberts - had found more holes in the law schools' case than in the Houston Texans' line.

And he'd opened up one or two of his own: Not only could Congress put conditions on its federal aid, he wrote on behalf of the court, but it could require that universities give the military access to their campuses whether they received federal aid or not.

Because, as the chief justice noted, "The Constitution grants Congress the power 'to provide for the common Defence,' '(t)o raise and support Armies,' and '(t)o provide and maintain a Navy.'" Yep, there's still nothing like reading the Constitution to determine what it means.

In their own defense, as opposed to the country's, the law schools could offer only a tortured reading of the First Amendment: Allowing military recruitment on campus, they argued, would violate their freedom of expression. Since it would imply that the schools were endorsing the military's policies, specifically the Don't Ask, Don't Tell rule that puts a special burden on homosexuals in the military.

Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.