A unanimous U.S. Supreme Court ruled on Monday that universities that get federal funds must allow military recruiters on campus, even if their law schools oppose the Pentagon’s policy prohibiting openly gays and lesbians from serving.
The high court upheld as constitutional a federal law dating back to 1994 that allows the government to withhold money from universities that deny military recruiters the same access to campuses given to other employers.
Finally, a victory for the kind of “diversity” that truly matters.
The decision is a defeat for the anti-military holdover contingent among academics who have held (disingenuously, in my opinion), that they were simply promoting a form of free speech by excluding the “intolerant” speech-act of the military—an argument the ACLU took up in an amicus brief filed on behalf of the law schools:
[…] it is a violation of the Constitutional guarantee of free speech for the government to force itself into a law school’s recruitment program. The brief notes, “These schools feel that the military isn’t a good employer because it discriminates. The government doesn’t get to cut off all funding to the rest of the university because the law schools won’t let the military use their recruitment process to spread its anti-gay message.â€Â
Of course, this argument was always based on the dubious idea that open sexuality was promoted by the military to the exclusion of gays and lesbians.
For what it’s worth, I am appalled by anyone in the military actively hunting out gays and lesbians in order to have them discharged, and I find that in such cases, the military is engaging in discriminatory actions that violate civil rights. But attempting to punish the entire military—while demanding the right to federal funds that are, at base, protected by that very military—is equally appalling. And worse, it promotes an idea of free speech that welcomes only that free speech that meets previous ideological vetting.
As SCOTUSBlogs’ Lyle Denniston summarizes that portion of the ruling:
The ruling rejected all of the law schools’ First Amendment claims. They had attempted, the Court said, “to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. Those arguments included assertions that they were being coerced into supporting the idea of discrimination against gays, that they were being compelled to subsidize the military’s anti-gay message, and that they were being forced to engage in “expressive conduct” in favor of the anti-gay program.
Nice to see the First Amendment serve free speech. Now, if we could only convince the 14th and 15th Amendments to preclude discriminatory race-based initiatives, we could be well on our way to restoring the Constitution and the Bill of Rights to their condition of intellectual coherence.
References: Supreme Court’s Syllabus; Oral Argument; Chief Justice’s opinion
(h/t Stop the ACLU; see also, Michelle Malkin, Sister Toldjah, Strata-Sphere, SCOTUSblog, Ann Althouse, Harry Callahan (via Ace), QandO, Outside the Beltway, and Independent Conservative. More discussion here, here, here, here, here, here, here, here, here, here, here, and here.
To lay the policy of “don’t ask, don’t tell” at teh feet of the military is disinginous. It is a policy hefted on them by congress. Certainly, if they had their druthers, the 5 sided house of pain would have a more vigorous policy. However, in the true sense, the military culture looks down on any questions of personal choice as long as it does not interefere with job performance. BUT, all things are also considered relating to that.
It is a bit of a circular argument, and policies remain as pertaining to what is allowed. Policies that are mostly thrown around as additional mud under a prosicution. Only mostly.
Did I leave enough ambiguity?
I couldn’t agree with you more. The way I saw it when I was in the military, whoever someone did the hibbity-dibbity with wasn’t really any of my business, and in most cases I certainly didn’t want to know – a few NCOs who bore more than a passing resemblance to walruses(walri?) or PGA golfer Craig Stadler come to mind. Whether they were diddling men, women, or other walri didn’t seem too essential for us to be able to complete our mission.
I remember vaguely the furor by people on both sides of the political aisle when “Don’t ask, don’t tell” (later amended to “Don’t ask, don’t tell, don’t harass, don’t pursue”) was implemented. Looking back it seems like one of the policies implemented by the Clinton administration that made sense.
I am not sure I agree with Rich that the Pentagon would want a more vigorous anti-gay policy. Some might, and the higher up, the more likely they would. But as time has gone on, I think that has gone down. Most of the senior officers I know think that it is not the place of the enlisted to have an anti-gay mentality, because they have been ordered not to. It is not a soldier’s place to persecute or drive out others – that’s for JAG.
How can sexual “preference” be a civil right? Let’s see, it’s not a religion (?), it’s not free speech, it’s not reporting, it’s not voting. So what “right” is involved? The only relevant question is whether forbidding the behavior at issue is rationally related to the mission of the armed forces.
Actually, Bacon Ninja, IIRC Clinton foolishly announced almost immediately after inauguration that all discrimination against gays in the military would be abolished. This caused a furor. “Don’t ask, don’t tell” was the compromise.
I’d say its more of victory for the first amendment. The government can withhold money from people who don’t follow its policy on gays—pro or anti-gay.
That’s right… You have to forgive me – that was 14 years ago and I was in 9th grade.
Maybe it was just the people I had around me all the time who were very, very conservative that sparked my memory. They were just as pissed about Don’t ask, don’t tell as they were about any suggestion of abolition. Then again, they managed to get pissed over just about everything Clinton said or did.
Wulf, You have a point that the Pentagon would not want a more vigorous policy. Indeed, now that the policy has been around for about 12 years, it feels more standard. Society has changed in that period, and the culture within the military has become acustomed to it.
I do not believe that the military would fall back to the previous stand. But I do believe that it may actually move toward a much tighter control on ANY questions regarding personal preferences. UNLESS, and this is again where the military is different, it interferes with job perormance. This is the logic currently used in their stand on adultry, fraternizaion, etc.
In this regard I am in full agreement with the later flavors that incorporated “don’t harass and don’t pursue.” Most issues which I have seen to rise out of the policy have been either self invoked, or rightfully (though with negative consequences) properly pursued when harrasment was involved.
I have to specify, I am only married to the Air Force, but have been around it my whole life.
That’s what I wrote.
Actus writes, “I’d say its more of victory for the first amendment.”
Okay, then. No need to try to disagree when we agree, actus—even out of habit. Fair enough?
Wow. The SCOTUS explicitly rejects the free speech argument against the Solomon amendment, saying that it regulates conduct not speech and the resident moonbat says its a victory for the Ist amendment!
The decision is victory of sorts for the rational interpretation of the Ist amendment but somehow I doubt that is what actus has in mind.
My question is why the learned law professors thought they could win.
I don’t know why they thought they could win other than that this decision was a reversal of the 3rd Circuit’s decision. So it wasn’t a slam dunk for the military until right before the buzzer.
Here’s my question though. Did Ginzburg stay awake during orals for this one?
There’s one bit you don’t get: That the first amendment the FAIR coalition was arguing for was the opposite of:
They wanted a first amendment where the government could NOT vet your views when giving you money. Where your associational and speech choices could not be taken into account when money was disbursed. That’s way too much. I’d like the government to be able to withold money from people who don’t follow public policy. Exclude gays? lose funding. Exclude women’s sports? lose funding. Exclude the military recruiters? lose money.
It’s a good thing that the law was upheld. I’d hate to see us go back to the old days when the military just shot the damn hippies when they got out of hand.
Is it wrong for me to be nostalgic?
Me too, but then ambiguity like this,
…leaves some convenient outs.
Oh, wait; I take that back:
How economic tyranny doesn’t ultimately breed fascism is beyond me…
Okay, actus. You want “free speech” tied to conditional acceptance of government policy.
Tell me, would you be cool if the government withheld student aid from kids who were anti-war? After all, we have passed a force resolution…
You know what? Nevermind. Don’t answer that. I’d rather just go for a walk with my kid than deal with you progressivism.
actuse assumes a perpetually fair and benevolent government, Jeff. It collects and it dispenses, all according to it’s own dictatorial values. Fortunately, as God/Money Launderer, it simply can’t screw up.
tw: Representative division of government, the mother of freedom, is officially dead.
Sticky, yep Ginsburg even asked a few questions. I thought she sounded hostile to the law schools case but I saw lefty commentary to the contrary. I guess they were just whistling pass the graveyard as it turned out.
Wait, I said that wrong. I meant to write that actuse models government as something that prints and dispenses fiduciary behavior modification. Silly me.
Is that a speech or conduct restriction? FAIR’s argument crossed that line. Way crossed it. I don’t see a first amendment issue with the government witholding student aid from kids who refuse to register for the draft, or commit general crimes, or discriminate on the basis of race or sexual orientation.
But content based punishments? That doesn’t work.
But the main point is that I don’t want organizations and businesses claiming that they have some sort of associational right to discriminate, to hire people lower than the minimum wage, to have speech rights to exclude gays, and to do this all without not just sanction, but without a loss of benefits.
Actus, sounds like you actually are for speech codes enforced by the government:
“kids who…discriminate on the basis of race or sexual orientation.”
Those kids can have their benefits witheld? Your words actus. Perhaps you wish to clarify your desire to regulate speech?
Sure. How about where I said:
“But content based punishments? That doesn’t work.”
Is that not clear?
Much of what you say isn’t clear, actuse.
Perhaps you should clarify this:
I’m hearing: Based on individual behavior, law-making special interest says who gets what from Washington. Close enough?
Close in the sense of general. You don’t have a first amendment right to keep receiving government benefits when you violate federal laws on labelling food products, for example. That fits into your general rule.
Actually, this case was pretty much a no-brainer for the Court. The schools’central argument was that allowing the recruiters on campus constituted “speech” by the schools. The Court simply said “no, it doesn’t.” So the case wasn’t really about free speech; it was about what does and does not constitute “speech.”
actus, you shot yourself in the foot with this first comment. If you think about it carefully, you just claimed that the government can withhold money from EVERYONE because they don’t follow a certain policy. Do you see how stupid this comment is?
Time to go home and give it a rest, old boy.
Come to think of it, you’ve shot yourself in the foot so many times on this blog that you died from exsanguination long ago. Everything that you post really comes from the random motions of your fingers caused by maggots as they return you to Mother Earth.
My only question is, how did you persuade the undertaker to run a power feed and ethernet cable into your burial casket?
TW: I expected actus to get stupid, and I was not disappointed.
Right. It was a victory for free speech because the ruling differentiated free speech from a particular speech-act (which is an instance of conduct that actually runs counter to free speech as an abstract ideal guaranteed by the Constitution).
At least, that’s what I take as it’s importance. Legally, it might be upholding a different precedent altogether. But symbolically, at least, I stick to my reading for the time being.
And we all know that horse has already left the barn—that by extension, you do have a “right” to dole when you act in a way acceptable to your State.
But actuse, are you comfortable with government doing this as a general policy? And with what that policy is doing to society?
IOW, is running funds through Washington to the private sector based on behavior always a wise policy, regardless of the relative and subjective merits of that behavior?
If we pass law against racial discrimination, the government can certainly withhold benefits like government contracts or grants from everyone that violates that law. At least per the first amendment. Is this sort of thing outrageous?
It would be unwise to fund people doing un-meritorious things. But I don’t think there’s a first amendment bar to it. At least not at the level of generality you’re talking about.
Actually, the opinion has little to do with free speech other than saying that access to students by military recruiters is not itself either speech of the university nor association of the university.
Dangerous as that rhetoric already is, the question is turned around.
IOW, should we fund when we can only do so along behavioral guidelines set, as it turns out, by special interest, typically headed by the group most likely to profit from all the gritty details: Lawyers.
As you know, mine is just a classic argument for libertarianism, but it seemed appropriate to toss it out there pursuant your comments.
Headed? or staffed?
I figured you were just giving hte standard libertarian line. I wasn’t sure, however, if you wer talking about what type of policy to have or the constitution.
I’ve linked from SCOTUS Upholds Solomon Amendment where I wrote:
And which is why we should see a reversal of Boy Scouts v. Dale. Or we would, if the court was principled.
I think the interpretation is that this is the limit of Boy Scouts v. Dale. That was the govt going too far, whereas here it didn’t.
Actually, this ruling specifically addresses Boy Scouts v Dale, and how it is different from this case. If you haven’t already read the decision, you can find a link in the article on my site.
Page 19 of the ruling addresses Dale.
I know, but the distinction between accepting members and allowing recruiters seems rather specious, which is why I implied that the court was unprincipled. The court seems committed to the “expressional associations” misstep, and I’d prefer not to make the further error of deciding that it’s in the business of deciding which acts are essential and non-essential to the message of expressional assocations. The court could have held much more narrowly limited its holding to the Spending Clause.
The jabs at Ginsburg for nodding off are amusing considering that Thomas has done it for years.
Them’s fightin’ werds, Josh.
Guys, it’s really not a victory for free speech, it’s a victory for Article I of the Constitution.
If the Congress has the right to raise an army, and it has the right to draft people to serve in that army, then it certainly has the right to withhold money from institutions that don’t allow it equal access to candidates for enlistment.
I mean, it can already compel people to serve in its homosexual-unfriendly environment. Allowing recruiters access on campus seems a pretty weak extension of its army-raising power by comparison.
The speech implications are next to nil, except for the fact that the SCOTUS barfed on the ACLU’s amicus brief, and help back the gate on turning every liberal objection about something the government does into a First Amendment matter.
Try again, Erwin. You clod.
The First Amendment was enacted after Art. I. Thus, assuming there was a First Amendment right here, it would trump Congress’ Art. I powers.
But Josh, Dale was a scoutmaster. As this decision notes, that clearly is a situation where his forced inclusion to the scouts changes the expression of values (speech) of the BSA. I don’t see how that could be equated to a university being told that if they decide to take federal funding, then they have to provide the federal government the same access as other employers.
Especially note that there are two opportunities for the university to avoid having recruiters (don’t take the money, or, don’t accomodate ANY recruiters), but the BSA doesn’t have these same ways out.
I appeciate your point that if they say these are two different situations, the court will someday be forced to draw an arbitrary line that defines which acts are essential to the message of expressional assocations. And I think it’s a very good point. But the two situations are different, even if it has inconvenient implications for the future.
FA,
I’ve got to go add up the results in Erwin’s amicus briefs. I have a feeling he has a poorer batting average than the Ninth Circuit.
I’m going to have to disagree with you, FA. Both in arguments and in the decision, the court said very specifically that this case was beside the point of the ability of Congress to raise armies. They essentially started out by saying that if the government lost this case, Congress could always put recruiters on campus through Article I. The fact that there was still a case to be decided after they noted this is because there was a First Amendment issue at stake.
The decision asserts that, but does not explain it convincingly. The BSA does not endorse every belief held by every single one of their scoutmasters, just as a law school does not endorse every belief held by their recruiters (or their faculty, or their students). That’s why I think that this outcome was correct, and that this reasoning should have prevailed in Dale as well. I agree with you that the conditionality and across-the-board ban option distinguish Rumsfeld from Dale, but I don’t agree that the impact on the schools’ “Free Speech” is relevantly distinguishable from the impact on the BSA’s “Free Speech” in Dale.
Well, if they can decide what’s essential to the game of golf…
They aren’t ‘their recruiters’ but recruiters that come to campus.
Josh, there is an issue of freedom to associate, or rather in this case to disassociate. An individual or group must have the freedom to make decisions for themselves about with whom they will associate and be associated.
In Dale, BSA had that freedom recognized by the courts. You cannot force someone into the BSA just because they want to be there.
In Rumsfeld, the law schools are free to disassociate themselves from the military recruiters. That’s not been contested. The freedoms are the same, and the court is being completely consistent and principled here.
The difference is that the law schools wanted to exercise that freedom, and still force the government to fund them. They do not have the ability to compell federal funding – government money comes with strings attached – it always has.
Screw the recruiters. Send in the press gangs and hustle these silver spoon trust babies over to Iraq and Afghanistan for duty as sandbags.
That wasn’t quite the issue in Dale. The issue was whether the BSA had to comply with NJ’s anti-discrimination statute. If the principle is as broad as you have stated it here, then Title VII is unconstitutional because it “forces” employers to hire employees they would prefer not to.
I agree. And that is why the court should have distinguished the cases on this basis and this basis alone, rather than drawing a specious distinction between the impact on “expressive association” here and in Dale.
You say that freedom to disassociate wasn’t the issue in Dale, but that’s exactly what the NJ law was about.
If the principle is as broad as you have stated it here, then Title VII is unconstitutional because it “forces†employers to hire employees they would prefer not to.
That is exactly how the Constitution used to be interpreted. See the Civil Rights Cases. And the court has a mixed history with respect to these cases, as the linked article notes.
The wording of the Civil Rights Act of 1964 – specifically with reference to “public accomodations”- is where I think things get philosophically ungrounded. It is one thing to prevent the government from discriminating against a person because of race, sex, or creed. But to deny the individual that right is to deny us the right of disassociation – something the First Amendment is supposed to protect. Because the courts have seen a compelling interest in stopping or undoing past discriminations, they have seen fit to limit this right of disassociation. But the philosophy behind that is not one based on personal freedom, but one based on social engineering. Whether laudible or not, that has to be recognized.
And that is why the court should have distinguished the cases on this basis and this basis alone, rather than drawing a specious distinction between the impact on “expressive association†here and in Dale.
If they had done that, they would be inviting challenges to Dale. The court is sending a message that this decision should not spark a challenge to Dale – they see enough difference that they just don’t want to hear it.
I think you and I will have to disagree on whether they were right to do so. I understand your argument, but I agree with the court.