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Supreme Court: Can Feds Withhold Funds From Law Schools That Ban Military Recruiters?

By TChris, Section Court Decisions
Posted on Mon May 02, 2005 at 06:05:16 PM EST
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by TChris

An ugly death in Iraq isn't the kind of future that induces young men and women to enlist in the military. The Army missed its recuiting goals for the third consecutive month in April. Perhaps hoping to bolster the Army's recruiting efforts, the administration persuaded the Supreme Court to decide whether it is entitled to withhold federal funds from schools that ban military recruiters.

A coalition of 31 law schools says forcing them to accommodate military recruiters also forces them to endorse the Pentagon's discrimination against gays and lesbians, which is at odds with the colleges' anti-discrimination policies. They say a 1994 law that threatens federal funding for colleges that ban military recruiters ["the Solomon Amendment"] violates their rights to choose what ideas they embrace or support.

The Third Circuit Court of Appeals in Philadelphia agreed with the colleges and declared the law unconstitutional.

The Bush administration argues that the schools surrender their free speech rights by accepting federal money. The law schools contend that they cannot be forced to endorse employers who discriminate on the basis of sexual orientation by providing them with career placement services.

"More than four decades ago, (the Supreme Court) announced the principle that applies to this sort of condition: In the context of civil liberties, the government cannot attach strings to a benefit to `produce a result which (it) could not command directly,'" the coalition told the court.

Until recently, law schools worked around the Solomon Amendment by giving recruiters a place to recruit without providing staff assistance or other support. Now the administration, faced with a potential recruiting crisis, insists that military recruiters receive the same services that the placement offices provide to other employers.

The court of appeals' well reasoned opinion is here (pdf). The Supreme Court will hear the case next term.

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    • Supreme Court: Can Feds Withhold Funds From Law Schools That Ban Military Recruiters? | 19 comments (19 topical)
    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:53:07 PM EST
    I guess that was the moral of many of the Grimm fairy tales: Never talk to Army recruiters.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#2)
    by jarober on Sat Dec 17, 2005 at 12:58:39 PM EST
    If schools wantto ban recruiters, they should be willing to give up government funding. Part of accepting funding from a source - any source - is putting up with the strings.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#3)
    by Pete Guither on Sat Dec 17, 2005 at 12:58:39 PM EST
    Putting up with strings from funding is one thing -- it's reasonable to expect funded organizations to follow procedures spelled out by the feds regarding the money they receive. However, it's an entirely different thing to expect organizations or individuals to give up their constitutional rights becuase they accepted money somewhere in their organization (particularly since the feds spend so much money, it's hard to find places where their money isn't involved). The government can't do an end run around the constitution simply by giving money. Sure, organizations can try refusing the money, but if the government is giving money to every competitor, then they face the choice of staying in business or exercising their constitutional rights (an unacceptable choice).

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:39 PM EST
    True that the federal government traditionally has pretty wide latitude to attach conditions to its spending. However, the federal government shouldn't be able to attach conditions that would themselves be unconstitutional. So, for example, they couldn't put a condition on a grant that compelled a state to discriminate against people in violation of the 14th amendment. The bigger issue in this case, I suspect, is whether or not the "right" claimed by the schools is something protected by the constitution.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:39 PM EST
    Worth reading again.... The Bush administration argues that the schools surrender their free speech rights by accepting federal money Yikes! I'd better get that student loan paid off - pronto!

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#6)
    by ppjakajim on Sat Dec 17, 2005 at 12:58:39 PM EST
    Sorry, but I don't see this as a gay rights issue. I see it as an anti-war issue hanging its desire to be so on the gay rights issue. The military is an insular organizaion, and is getting worse as time goes on. The way to cure that is to get more people with diverse views into the military. I favor universal service, but that probably will not happen. Letting the military recruit in this environment will bring different people in, and promote change.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:39 PM EST
    If schools wantto ban recruiters, they should be willing to give up government funding. Part of accepting funding from a source - any source - is putting up with the strings.
    So, you wouldn't have any problem with, for example, conditioning eligibility for socal security benefits on political support for the administation? That's no dfferent than what you propose.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#8)
    by ppjakajim on Sat Dec 17, 2005 at 12:58:39 PM EST
    rea - The government does this on a wide basis. They take your tax money and then blackmail your state government into doing what want. Some are: Don't follow federal rules on drinking age? Then lose your highway funds. Don't follow federal EPA guidelines? Then pay a fine. Don't follow K-12 school programs? Then lose education money. Why should these schoools be different?

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#9)
    by expertlaw on Sat Dec 17, 2005 at 12:58:39 PM EST
    Jim, you're arguing in favor of such restrictions? I had pictured you as more of a federalist....

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#10)
    by Pete Guither on Sat Dec 17, 2005 at 12:58:39 PM EST
    PPJ, I believe the feds do way too much of that blackmailing. Even so, there are distinctions. Example: The Istook amendment that required Metro systems receiving federal dollars to reject marijuana legalization advertising. Clearly unconstitutional. Courts struck it down, Justice Department was too embarrassed to appeal. I honestly don't know how the courts will rule on this one, but I think there is the potential that these private schools have certain rights that cannot be erased through bribery. In my opinion, the fed case is also weakened because the money is not tied to the situation. If the schools were receiving federal money to set up recruitment fairs and that required including the military, that would be one thing -- but if a faculty member in a department in the school has gotten a federal research grant to study toads, then how can that be a legitimate lever to control completely unrelated activity?

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#11)
    by ppjakajim on Sat Dec 17, 2005 at 12:58:39 PM EST
    Pete Guither - I wouldn't even try to address the legal issues, even though I did sleep at a Holiday Inn Express last night. ;-) But, from a societal view, we need some of the people who attend these schools in the military. In the CIA. etc. If we don't, then we will end up with a military that doesn't match the country. As Rome discovered, that's deadly. On another larger view stage, if these schools can do this, then the pressure by the far Right for their schools, their states, etc., to ignore the feds will only increase. And the distinctions made on a legal basis will not matter to them, or eventually to the country as a whole. It is possible to be right, and sill lose the battle.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#12)
    by Pete Guither on Sat Dec 17, 2005 at 12:58:40 PM EST
    PPJ, Agreed. We need lawyers represented in the military. I'm all for a volunteer military that includes and represents all of society. It would be nice if we could acccomplish that inclusion without excluding qualified individuals. I'd like to see military recruiters at those schools not discriminating.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#13)
    by Wile ECoyote on Sat Dec 17, 2005 at 12:58:40 PM EST
    Of course the courts are ignoring the bottom line: The involvement of the federal gov't in any facet of education is unconstitutional. I would like to see that go the the supreme court.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#14)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:41 PM EST
    So, you wouldn't have any problem with, for example, conditioning eligibility for socal security benefits on political support for the administation
    You know, there is a lot of discussion of freedom without discussion of responsibility. The freedom's we have are preserved partially by our military (I know its the imperialist military of a capitalist state oppresing the masses of the third world - got that out of the way now). Taking their argument at face value, "Don't ask, Don't tell" is not discrimination. First, homosexuality still has not been elevated to the rank of race, gender, age etc; either in law or in the national mentality. Second, this policy is the best they can do at the moment. Other folks in the barracks may just be "homophobes"; but you still have to maintain discipline in a military filled with "homophobes". The military is not the place to come out - serve your country and leave your mouth shut about your sexual preference. I think Jim is right - I think this is about anti-war; not support of gay rights. As such, support of your country's national defense is a huge step above all the other programs mentioned. Jim is also, though it doesn't matter here, right about universal service. Everybody should have to serve their country for a couple of years - in some capacity (not necessarily military) or another. Exercise some responsibility in exchange for all those freedoms and rights you get to claim.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:42 PM EST
    jchfleetguy, I just wanted to respond to you assertion that
    this policy is the best they can do at the moment. Other folks in the barracks may just be "homophobes"; but you still have to maintain discipline in a military filled with "homophobes". The military is not the place to come out - serve your country and leave your mouth shut about your sexual preference. This is most certainly not the "best they can do at the moment." They can admit gays and heterosexuals to the military and stop trampling privacy by prosecuting people for engaging in consensual sex. (Thank God for the courts). As far as your belief in the need to "maintain discpline," the Supreme Court has, at least in certain contexts, roundly rejected the proposition that government should inform its policies based on the risks of violence or disurption created by unruly bigots. see Palmer v. Sidoti (refusing to allow societal racism to play a role in custody disputes). But beyond the constitutional theory, it is important to remember that the military long ago confronted this same issue when it desgregated the military. This, at a time when the armed services was full of racists. No one can seriously contend that the military should have maintained a "separate but equal" armed services in order to "maintain discipline." It is true that blacks could not "keep their mouths shut" about their skin color, but it is also true that people learn tolerance by exposure to different values, not by the government trying to silence discussion. If members of the army are so homophobic that they cannot do their job in the presence of a terrifyingly out-of-the-closet homosexual, they should be the ones to "shut their mouths" about their "sexual preference." (Personally, I talk to friends about my girlfriend quite frequently. I don't see why gay soldiers shouldn't be afforded the same luxury). In other words, homophobes should grow up. If someone is willing to sacrifice their lives for in the name of our freedom (or made-up WMDs, or money, or stupidity), that should be enough to earn anyone's heartfelt respect, much less enough to earn the common professional courtesy necessary to serve in the same unit. And the government should grow up, too - and quit trying to strongarm schools who express their First Amendment rights through a boycott of discriminatory military recruiters.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#16)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:42 PM EST
    jewbulawguy, Great, but as I said sexual orientation is not established in law, or society, as is race, gender, etc. So the racial issue is not the point (nor was it decided by the Supreme Court). But on the racial issue, separation was the rule from the Civil War thru WWII - 80 years to confront the issue. How long has "Don't Ask, don't tell" been military policy? If society has to come to grips with its opinions about homosexuality, so be it - but expecting the military (where unit discipline and trust are essential to survival) to be the "cutting edge" of reform is just wrong.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#17)
    by Sailor on Sat Dec 17, 2005 at 12:58:42 PM EST
    jchfleetguy - interesting points. I'd like to bring up a couple of others. Homosexuals have always been in the military. They can't be delineated by skin color. It is not their choice, anymore than skin color is. Whether you can trust a person with your life does not depend on gender, sexuality or skin color. This has been proved over and over. The military is the first place we should demand excellence over superficialities.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:58:42 PM EST
    Sailor, All true. But, unlike skin color, age, gender etc. sexual orientation is invisible unless you out yourself, or are outed. I believe homosexuality is a sin; as is adultery, income tax evasion, swearing, and pride. I do not believe that gays are incapable of restraining themselves; more or less cowardly than most; or more or less likely to shirk their duty. Thinking it is a sin is not an excuse for phobia; or discrimination; or denial of civil rights (but not because you are gay - because you are human). [It is interesting to me that the -ism connected with homosexuality is -phobia, as if opposition means you must fear it - curious] If the military is that worried, do what they do with women - have separate barracks and showers. All that said, the military is not the place to expect cutting edge social transformation. And Richard is right too - this is the school using homophobia as smokescreen for being anti-military.

    Re: Supreme Court: Can Feds Withhold Funds From L (none / 0) (#20)
    by Sailor on Sat Dec 17, 2005 at 12:58:42 PM EST
    These schools bar every group that practices discrimination according to their established guidlines. Since the current regime has endorsed that practice, it is hard to see how they can argue otherwise.

    Supreme Court: Can Feds Withhold Funds From Law Schools That Ban Military Recruiters? | 19 comments (19 topical)