March 6, 2006

Don't Ask, Don't Yell

Hatched by Dafydd

The Supreme Court today closed the door on a long-festering issue: they voted unanimously that the Solomon Amendment, which cuts off federal funding to any educational institution that bars military recuiters from its campus, is thoroughly constitutional. Or rather, they closed the legal door; there are many other doors through which the battle can continue to rage. (Rumsfeld v. Forum for Academic and Institutional Rights, 04-1152)

The Supreme Court ruled unanimously Monday that colleges that accept federal money must allow military recruiters on campus, despite university objections to the Pentagon's "don't ask, don't tell" policy on gays.

Justices rejected a free-speech challenge from law schools and their professors who claimed they should not be forced to associate with military recruiters or promote their campus appearances.

Chief Justice John Roberts, writing for the court, said that the campus visits are an effective military recruiting tool.

"A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message," he wrote.

Lots of "Snoopy dances" on the Right following that one. It certainly seemed a no-brainer, since left-liberal Justices Ginsburg, Breyer, Stevens, and Souter joined with conservative Justices Thomas, Scalia, and Chief Justice Roberts, who wrote the only opinion, and the lone "swing voter," Anthony Kennedy (Justice Samuel Alito did not vote). But in fact, it was a reversal of a wretched decision by the Third Circus Court, which evidently bought the idea that the constitutional right of "freedom of speech" included the right to force other taxpayers to subsidize your speech.

Oh, by the way: I completely support allowing gays to serve openly in military service. Unlike the argument many have against women serving in combat positions, there is not even a weak claim of physical impairment... the argument against gays is exactly analogous to the argument against President Harry S. Truman integrating the troops in 1947: nobody claims that gay soldiers can't fight; the only objection is that some straight soldiers would be uncomfortable, and that this would impact morale.

In any event, "Don't Ask, Don't Tell" is a congressionally mandated policy, and the military has no choice: only Congress can change it. So it was always absurd to punish the military by barring recruiters.

The New York Times makes clear why the Third ruled one way and the Supreme Court overturned them:

The plaintiffs had persuaded the federal appeals court, in Philadelphia, that the Solomon Amendment imposed an "unconstitutional condition" on the universities' receipt of federal money by requiring them to surrender their First Amendment rights and become involuntary carriers of the government's message against gay men and lesbians in the military.

But Chief Justice Roberts said today that the plaintiffs' theory of the case, as well as the opinion by the United States Court of Appeals for the Third Circuit, was based on a fundamental misperception about what it was that the Solomon Amendment was imposing.

"As a general matter, the Solomon Amendment regulates conduct, not speech," the chief justice said. "It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."

Noting that the law schools remained free to disavow the military's policy, to denounce it or even to help students organize protests, Chief Justice Roberts said that "the Solomon Amendment neither limits what law schools may say nor requires them to say anything."

I never understood the Third's decision. Obviously, if the law requires a school to host military recruiters, that means that the presence of those recruiters says absolutely nothing about the school's position on Don't Ask, Don't Tell. I appreciate the fact that Chief Justice Roberts made exactly the same point today:

Citing a 1990 Supreme Court decision that upheld an equal-access requirement for student religious clubs in high schools, the chief justice continued, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so." He added, "Surely students have not lost that ability by the time they get to law school."

One other interesting point from our new chief justice: the actual finding in this case was merely that a law passed by Congress was constitutional. The Court did not decide that military recruiters belong on campus; Congress made that decision.

But this Court also unanimously held that Congress could, if it wished, simply pass a law requiring schools to allow military recruiters on campus even if the school didn't accept federal money.

The constitutional power of Congress to "raise and support armies" was another significant thread in the opinion. Chief Justice Roberts said that in exercising that power, Congress could have directly required universities to admit military recruiters, instead of taking the more indirect approach of making access a condition of federal funding. "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly," he said.

I would like to see such a law enacted. As it stands now, many of the elite, Ivy League universities have endowments so large that they could forgo all federal money in order to maintain the ban against military recruiters. In fact, I expect many of them, including Harvard, Yale, and MIT, will do just that.

The trustees of these universities may object. They might even use the loss of revenue as an excuse to oust the university administration... but I wouldn't hold my breath awaiting such firmness. The best we can hope for is that some conservatives will use the withdrawal of federal funds to run for the board of trustees.

But if we really want these schools to allow the military a fair shot at recruiting students, Congress will have to take it completely out of their hands by nakedly forcing them to admit the recruiters. I don't have high hopes for this approach either; but at least all it takes is a single vote, unlike sitting around and waiting to see whether universities care more about federal dollars or gay activists.

By the way, does the Solomon Amendment apply to public secondary schools as well? If so, I am really eager to see high schools across the country forced to restore ROTC programs on campus!

Hatched by Dafydd on this day, March 6, 2006, at the time of 8:05 PM

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Tracked on March 7, 2006 7:17 PM


The following hissed in response by: Bill Faith

I just added this to the bottom of my SCOTUS Upholds Solomon Amendment post:

Dafydd ab Hugh has an excellent discussion of the matter here. Even after reading all the things I linked to above I still learned new things from his post. Go read it.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at March 6, 2006 9:16 PM

The following hissed in response by: JSchuler

The argument against women in combat roles in the military is NOT based on their physical ability. Such an argument would be easy to address by simply applying the same training standards to both genders (in which case you would probably find that women would make better snipers and better fighter pilots than men). The argument against women IS an argument based on morale. However, the argument against gays in the military is still weaker, as A) while the argument against women pertains only to their roles in combat, open gays are to be excluded from the entire military establishment and B) there are concerns that images of dead, wounded or captured female soldiers would harm civilian morale as well. There is no such concern for homosexual soldiers.

The above hissed in response by: JSchuler [TypeKey Profile Page] at March 6, 2006 9:51 PM

The following hissed in response by: MTF

Drop federal funding? Never going to happen.

Has anyone seen a complete list in concise form of dollars by school? I'd love to see one. Harvard and MIT might get hundreds of millions annually. Harvard will drop their law school first.

I'm betting this is a non-issue, or will be shortly.

But this is certainly refreshingly new:

"One other interesting point from our new chief justice: the actual finding in this case was merely that a law passed by Congress was constitutional. The Court did not decide that military recruiters belong on campus; Congress made that decision."

The court isn't legislating anymore? Can it really be true?!

The above hissed in response by: MTF [TypeKey Profile Page] at March 7, 2006 5:58 AM

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