The Supreme Court has decided to review the Third Circuit’s ruling in Rumsfeld v. Forum for Academic and Institutional Reform. At issue is the Soloman Amendment, a federal law that denies federla funding to schools if the schools do not permit the military to recruit on campus.
The law was originally challenged on discrimination grounds. Schools claimed that the military’s “don’t ask/don’t tell” policy was inconsistent with their own campus rules regarding discrimination, and that those campus rules prohibited any organization NOT in compliance with an open-door policy on hiring GLBT persons was unwelcome to recruit on campus. The courts rejected this claim.
The Third Circuit did, however, accept an alternate theory, finding a First Amendment basis for overturning the Soloman Amendment… ruling, in essence, that forcing the law schools to host military recruiters was tantamount to forcing them to endorse the military’s point of view, and that this violated the schools’ First Amendment rights to expressive conduct.
I think the Third Circuit was smoking crack, instead of reading Rust v. Sullivan, a 1991 case that upheld the federal government’s right to withhold federal funds from doctors if they so much as mention abortion to their patients. In the military recruiting case, no one is telling the schools what to say – they are just mandating that the military be given a chance to recruit on campus. This is far LESS intrusive conduct than was at issue in Rust, and the Supreme Court approved Rust.
I also think the Supreme Court will reject that crack-addled Third Circuit view with muscular vigor, as they should.
I do not have the expertise to speak on the constitutionality of this amendment but I do believe that it is wrong.
Presumably there are many legitimate reasons why an university recieves federal funding. Whether it be research, assistance to the poor or just promotion of higher edcuation. “Providing a place for the military to recruit” is not a reason I have ever seen given for federal funding of universities. If the funding is justified on grounds other than military recruiting why does not providing services to military recruiters make that funding unjustified?
The other thing that troubles me is that there is an exception for a long standing religous based pacifism. The first issue this brings up is why is one set of moral objections more valid than another. If I object on the moral grounds that the military is a homophobic orginization, which it is, why is that any less of a valid reason than objection based on the moral grounds of pacifism. The second issue is why are religious based moral objections more valid than non-religious based ones. The amendment does no provide an exception for long standing pacifism rather that pacifism must be religous based.
The military is undeniably a discriminatory, why should it recieve special exemption to universities long standing polcies? If the answer is recruiting shortages why not gasp *shock horror allow homosexuals who depending on what criteria you use make up 5-10% of the population. This would kill two birds with one stone, allow you to recruit on these universities’ campuses and increase you pool of recruits.
The military is undeniably a discriminatory ** orginization **, why should it recieve special exemption to universities long standing polcies? If the answer is recruiting shortages why not gasp *shock horror allow homosexuals who depending on what criteria you use make up 5-10% of the population ** into the military **. This would kill two birds with one stone, allow you to recruit on these universities’ campuses and increase you pool of recruits.
In what way does the presence of military recruiters bolster the ability of schools to impart an education to their students? Are we now saying that Federal funds are a flat out quid-pro-quo for access to the student body for whatever purpose, whether it aids the educational mission of the institution or not? I would guess the language of the appropriations bills under which those funds are allocated contain a lot of “fostering an educational environment for excellence in academic and vocational pursuits” and very little “ensuring representatives of the Federal government have opportunities to share information about their programs with students”.
Both of the legal arguements sound like bullshit, but it honestly never occurred to me that so many strings can be, and indeed are, put upon funding. If it is for educational purposes, than that’s the string. Forcing hosting of military recruiters(or any kind of recruiters for that matter) seems overbearing, IMHO.
Federal money comes with strings attached no matter what it’s funding. If a school wants to exercise their 1st Amendment rights then I suggest they steer clear of Federal dollars.
There are two arguments here: is the law in question wise public policy, and is it constitutional? My OP was more focused on #2, but I believe this is wise pyblic policy as well.
If nothing else, excluding military recruiters from law schools - the particular schools at issue in this case - means that only the most hard-core, already pro-military types will seek out military careers after law school. The military will benefit from greater diversity of outlook entering the ranks of the JAG corps, and the country will benefit as well. Perhaps policies developed for legal treatment of military prisoners, for example, will reflect a different sense of priorities, and perhaps that will be a good thing.
I don’t have a problem with that; I think scrapping the “don’t ask/don’t tell” policy and permitting qualified persons to serve regardless of their sexual orientation would be a wise move. If there are problems with respect to inappropriate relationships, they should be addressed by specific non-fraternization rules and enforced against same- and opposite-sex pairings equally.
It’s only collaterally relevant to what we’re discussing here, however.
I disagree, the rightess or wrongess of the policies in question here is important.
The universities in question have a very reasonable policy of not providing recruiting services to discriminatory employers.
The military has a largely irrational policy of banning homosexuals from serving.
Faced with the problem of a recruiting shortage Congress can pressure either orginization to change its policy. If Congress wanted to they could put their foot down and force the military to change its policy. This would add a great number of potential recruits plus solve the problem in question. Compare that with a largely ineffective law that strips money from universities that could be used to give scholarships to those in need. For what? Having a perfectly reasonable non-discrimintation policy?
The thread was started to discuss the Supreme Court’s grant of cert, and the reasons they may uphold, or reverse, the decision.
Are you saying the Supreme Court should base it’s ruling simply on what the rightness or wrongness of the policies are? Isn’t that Congress’ job? Isn’t the Supreme Court’s job simply to interpret the laws Congress passes, and the Constitution?
No that statement was in response to your argument that this was sound policy. I am interested in how you would respond to the points I brought up in that point.
Is the rightness or wrongness of the policies important to how the Supreme Court should rule, or to the more general quetion of what Congress should do?
Its to the more general question of what Congress should do.
You also said:
I guess I am a bit confused at your seemingly contradictory answers. You say that allowing homosexuals into the military is a wise move yet also say that punishing these universities is wise public policy.
Assuming the quasi-ban on homosexuals in the military remains in force, I believe it’s wise public policy to require universities to permit military recruiters on campus. In fact, as I suggest above, since the chief opponents to ending this policy are collectively the military leadership itself, and since future leaders come from below, then drawing in - recruiting - a more tolerant and diverse crowd may be an excellent way to thaw the military’s collective attitude in this area.
The military’s quasi-ban on homosexuals is itself NOT wise public policy.
If you’re going to use that as the basis for arguing wise public policy, then you should go ahead and favor an involutary draft as well. In some ways, this country was better off when everybody was in the military (which is reflected by other countries with this requirement, such as Switzerland). The all-volunteer military has become, in short order, as you describe it, composed of hard-core pro-military types. People who have nothing to do with the military also have a skewed perspective on what the nation’s armed forces are supposed to represent. The two sides regard one another from opposite sides of a yawning philosophical gulf, with virtually nothing between them. Symptomatic of this is the total breach of belief on the Iraq war; a faction of the pro-military types just likes bombing the shit out of people, and a faction of the anti-military types wouldn’t even have responded after Pearl Harbor. The problem is, these fringe elements are incorrectly held up as representative of the whole by the opposing sides: A large proportion of peaceniks accuses all military types of being ignorant, bloodthirsty cretins, and a large proportion of military types accuses all peaceniks of being ignorant, cowardly weaklings. From a “wise public policy” perspective, then, it would be healthy and productive for the country to require all citizens to serve in the military, so the less-inclined-to-war faction could see firsthand what a nation’s armed forces are supposed to do and be, and the more-inclined-to-war faction could be diluted somewhat by those who recognize and represent what a nation’s armed forces are supposed to do and be. N’est pas?
Personally I don’t think State funded schools should have the right to refuse access to military recruiters. The military serves a vital function within the State and allowing schools to refuse the military access is harmful to our national defense, thus it should be a practice that is simply illegal in the first place.
However in this particular situation I find it highly odious that the Federal government is withholding funds. I’ve never liked this “bully” tactic that the Federal Government uses to force States into the Fed’s line of thinking. The Fed has used this “power of the purse” to basically make decisions for States that constitutionally are “State level” issues and thus can only constitutionally be dealt with by State government.
An example is the 21 year old drinking age. Several States did not agree with that age cutoff, but when the Federal Government threatens to withhold highway funds unless states change their drinking age to 21 I find that to be a serious problem.
So in essence I agree that the military should have complete access to State funded schools, and if the schools don’t like it, tough, the military and the government rightfully have the power (if they so choose to use it correctly) to tell the schools to shut up and take it. But to bully the school with money is inappropriate since that isn’t the reason the constitution gives the Federal government taxation powers. A government cannot take our money and then bully us by threatening to not spend that money improving our schools, highways, et cetera, those are the reasons we consent to be taxed in the first place. It’s our money, we’ve accepted as a society that we’re going to pool our money together via government and have government make decisions for the public good, but we as a people logically would not and do not consent to giving the government money so that the government can make us do whatever it wants lest it keeps the money to itself or gives it to someone else.