I written here too many times to cite that the issue in Rumsfeld v. Fair, the case concerning the Solomon Amendment’s cutting off of funds to universities whose law schools excluded military recruiters, could not be properly understood unless considered in the context of both Bob Jones and Grove City. (Although I won’t cite all my discussions of this point, some of them are here, here, here, here, and here.
Thus I was especially pleased to see the following in this comment to this post on Volokh:
I would have been happy with the opposite result in FAIR had the Court reversed Grove City and Bob Jones. I am equally happy with the result that the Court actually delivered. I cannot for the life of me understand how anybody with a modicum of intellectual honesty can wish for a contrary result in FAIR while also insisting that the Court leave those other two decisions intact — unless, that is, they unabashedly hold that some forms of speech are more deserving of constitutional protection than others.
Indeed.
The thing with bob jones is that that racial discrimination is different than sexual orientation discrimination. Different in terms of its total rejection at all levels of our government.
The argument made by the schools opposing the Solomon Amendment is so illogical it makes you wonder about the intelligence of these “intellectuals”. Basically their argument is that their free speech rights gives them the right to prevent others from exercising their rights to free speech. Because they oppose the don’t ask don’t tell policy, they argue that they have the right to prevent students from speaking to military recruiters on campus. These are the same people who claim to believe in academic freedom. If they truly believed in free speech and wanted to show their opposition to the policy they would picket the military recruiters or set up a booth they gave out literature in opposition to the policy. Instead they attempt to censor ideas that they don’t agree with. So much for the concept of academic freedom.
“Basically their argument is that their free speech rights gives them the right to prevent others from exercising their rights to free speech.”
well. thats how newspapers excercise their free speech rights. They don’t let others come onto their property, and use their resources, and do what those others want.
I don’t see whats so puzzling about this.
Students can speak to recruiters on campus. In fact, most schools have lots of military people come to their campuses quite often. What the schools don’t want to do is to give their resources — and recruiting by schools is a resource — to organizations that are going to discriminate against their students.
I dont think you quite get what academic freedom means. Specifically, it doesn’t really apply to non-academic things like recruiting or advertising. It doesn’t make it ‘academic’ just because its on campus.
It appears that you either don’t understand what the Solomon amendment is actus or you are being deliberately obtuse. What do you mean their resources? Are you talking about the millions of dollars that they get from the federal government? Suddenly if becomes their resources. You’ve got to be kidding. If it were really their resources and if it were a private university then nobody would question their right to discriminate against recruiters. However, that is not the case. They happily take money from the same government that they claim is discriminating against gays in the military. Remember it is NOT the military that made this policy but the government. In fact, it was promulgated by President Clinton. I guess he is just another gay basher.
Your analogy about newspapers was particularly inane. It has nothing to do with allowing students who pay good money to the university the right to speak to recruiters. As long as the universities allow any businesses to come on campus, they have an obligation to allow the military to come on campus. However, they don’t believe in free speech except their own. Their attempt to suppress viewpoints that they disagree with is especially repugnant.
By the way newspapers normally go out of their way to give people with opposing views a platform. They allow them to right op-ed pieces or to take out ads. So much for your analogy.
“What do you mean their resources? ”
I mean the recruiting work. Schools give rooms, and use their labor and other resources to bring recruiters ot their students. Schools don’t want to use this effort to bring in recruiters that are going to discriminate against their students.
“As long as the universities allow any businesses to come on campus, they have an obligation to allow the military to come on campus.”
The solomon amendment requires, I think, that military recruiters get the same access and treatment as other recruiters. No talk of ‘businesses’
“By the way newspapers normally go out of their way to give people with opposing views a platform.”
Oh. Lots of universities have hosted fora on the solomon amendment. Lots of universities have military speakers and military faculty. I think Yale included. Both sides of the issue are being vented in our universities.
Again, whats the suppression here?
The Solomon Amendment only requires that colleges treat military recruiters like other recruiters. If they don’t want to use their resources on military recruiters, then they need to not use them on other recruiters. It’s that simple.
As usually actus, conversing with you is like talking to a brick wall. You ignore the point of my comment and go off on a tangent. The main point of my comment was that universities, since they claim that they are so offended by the government’s don’t ask don’t tell policy, are being hypocritical when they take money from the government. It is the government and not the military that instituted that policy. In fact it was President Clinton that instituted that policy. They, like you, ignore reality and pretend that it is the military that is responsible for that policy. It the government decided to change the policy the military would have to go along with it. Thus, they are being disingenuous when they hold the military responsible for that policy. Of course the reason they do it is because like all good little leftists they hate the military. This just gives them a convenient excuse to discriminate against the military.
Universities like any other organization cannot take money from the Federal government without strings attached. It they want the money then they have to follow the rules. If they are really so offended by the don’t ask don’t tell policy they should refuse to take money from the government that instituted that policy. Clearly their moral outrage stops at their wallet.
“The Solomon Amendment only requires that colleges treat military recruiters like other recruiters”
Exactly. Its about forcing schools to choose between no recruiting, discriminatory recruiting, or an entire loss of funding for the entire university — not just the school which is choosing to have a policy of non-discrimination for the use of their recruiting services.
Schools are also forced to turn over information on their students, including name, age, major, and previous educational institution. Thats certainly more than other recruiters get.
“The main point of my comment was that universities, since they claim that they are so offended by the government’s don’t ask don’t tell policy, are being hypocritical when they take money from the government.”
Not really. You also forget the point that different parts of the university may be objecting. I know at my law school, we were debating whether to allow the JAG recruiters to discriminate against our students. At the same time, it was other schools and departments that faced the worst of the financial pressure. So no hypocrisy.
“If they are really so offended by the don’t ask don’t tell policy they should refuse to take money from the government that instituted that policy”
Why is that? That makes no sense. If they are offended by people who want to discriminate against their students they can just not let them. Sounds much simpler.
Not really. You also forget the point that different parts of the university may be objecting.
Do you really think anyone is going to believe that fiction? A university is incorporated as a single entity. It is legally responsible for all of its schools. It you don’t understand that maybe you better try going into a different profession.
If they are really so offended by the don’t ask don’t tell policy they should refuse to take money from the government that instituted that policy”?
Why is that?
You really don’t know? Give me a break. Even you can’t be that ignorant. Would you be willing to accept money from the KKK but just not let them speak at the university? Of course not, because you find them morally repugnant. So why would you sue to take money from the federal government when you believe that their policies are immoral?
“Exactly. Its about forcing schools to choose between no recruiting, discriminatory recruiting, or an entire loss of funding for the entire university — not just the school which is choosing to have a policy of non-discrimination for the use of their recruiting services.”
There’s a terrific Supreme Court decision which completely knocks down every argument made for discriminating against military recruiters on campus. You might try reading it some time. But the upshot is this: Even if every other argument made by discriminatory universities were true (and they aren’t), military recruiters would still be allowed because they are providing for defense of the country, which includes whiny anti-military university faculty, as well.
“Schools are also forced to turn over information on their students, including name, age, major, and previous educational institution. Thats certainly more than other recruiters get.”
The schools probably get much more funding from the government than from private recruiters, as well, don’t you think? Seems to me that if schools really are gung-ho anti-military, they can put they wallets where their mouths are.
“Do you really think anyone is going to believe that fiction? A university is incorporated as a single entity. ”
you can call it a fiction, but the reality is that different people are making different decisions. I applied to the law school, not the university, and someone from there decided to admit me. The law school faculty picked its dean, not the the university, and the law school makes its graduation and recruitment policies. You can call it fiction, but unfortunately that doesn’t reflect reality.
“t is legally responsible for all of its schools.”
Legally responsibility is different than hypocrisy. Here the trustees are delegating decisionmaking. They’re not hypocritical if those delegates make disparate decisions.
“You really don’t know? Give me a break. Even you can’t be that ignorant. Would you be willing to accept money from the KKK but just not let them speak at the university?”
The KKK isn’t like the government. The government does lots of htings. I think the war in Iraq is wrong, yet I still drive on highways built by the government. Some people think that Roe v. Wade is wrong, yet they still use the court system to sue when they have been hurt. Its not hypocrisy.
“The schools probably get much more funding from the government than from private recruiters, as well, don’t you think? Seems to me that if schools really are gung-ho anti-military, they can put they wallets where their mouths are.”
The law schools, I’m not so sure. The universities in general, probably. But unlike you said, solomon is not about getting the same as private recruiters.
As for the discrimination, the military has to face the same rules as everyone else. Right now they’re getting in many places basically affirmative action: beneficial discriminiation. They’re allowed to break the rules. Basically the military wants special rights, and since they have money, they get it.
How is using the court system to sue comparable to the atrocity of Roe v. Wade? This argument makes no sense.
“The law schools, I’m not so sure. The universities in general, probably. But unlike you said, solomon is not about getting the same as private recruiters.”
I went to a public university, then a private law school. If you go to a public law school, I’m sure you’re getting all the funding of the undergrads, including the buildings you use. And yes, Solomon is about giving military recruiters the same access to students that private recruiters get.
“As for the discrimination, the military has to face the same rules as everyone else.”
Yes. They want equal access.
“Right now they’re getting in many places basically affirmative action: beneficial discriminiation.”
Is this a sentence? It doesn’t make sense.
“They’re allowed to break the rules. Basically the military wants special rights, and since they have money, they get it.”
How are they getting this? By getting the same access as private recruiters?
“How is using the court system to sue comparable to the atrocity of Roe v. Wade? This argument makes no sense.”
Uh. Thats not the comparison i’m making. The point im making is that just because you disagree with some thingsthe government does, it d oesn’t mean that you have to cut yourself off from the government in order to remain un-hypocritical.
“Yes. They want equal access.”
I say they get it. They get equal treatment, and the rules equally applied. But thas not what the law says they get. The law says they get special rights to not follow the rules. Most schools acquiesced even before the solomon litigation.
“By getting the same access as private recruiters?”
There’s a rule against discrimination. Private recruiters that break this rule don’t get access. The military gets more than private recruiters. It gets special rules.
It also gets to demand student information.
I say they get it. They get equal treatment, and the rules equally applied. But thas not what the law says they get. The law says they get special rights to not follow the rules.
That’s disingenuous. Can I create a rule that says, “Nobody with more than X amount of melanin can matriculate here” and then claim that I’m applying the same rule to blacks and whites when I deny admission to blacks? That black people want “special rights” not to have melanin, even though white people with that level of melanin would be excluded?
If you create a rule that defines a group, the rule is not neutral; you can’t neutrally apply a non-neutral rule.
“Can I create a rule that says, “Nobody with more than X amount of melanin can matriculate here” and then claim that I’m applying the same rule to blacks and whites when I deny admission to blacks?”
Well, ask john about the difference in discrimination law about discriminatory intent and discriminatory effect. I can’t think of any good reason to have your rule other than to discriminate against black people.
But I can think of good reasons why a school wants a rule that companies that want to discriminate against their students not get the use of campus resources to help them in that discrimination.
“If you create a rule that defines a group, the rule is not neutral; you can’t neutrally apply a non-neutral rule.”
But this rule at issue doesn’t define a group.
You might want to read the decision, Actus. It counters all your arguments. Here’s a link to the blog:
http://www.scotusblog.com/movabletype/archives/2006/03/court_upholds_s.html
And just a couple of relevant passages:
“Applying the same policy to all recruiters is insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military. Law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that ‘provided to any other employer.’ …Under the statute, military recruiters must be given the same access as recruiters who comply with the [schools’ non-discrimination] policy.”
And:
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.
Finding that Congress had the constitutional authority, under its power to “raise and support armies,” to command colleges to accept military recruiters, the Court said there was no constitutional problem in achieving the same result by threatening to cut off federal funding if equal access is denied. “It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly,” it added.
Rejecting the “compelled speech” challenge, the Court commented: “The Solomon Amendment neither limits what law schools may say nor requires them to say anything.” The Amendment, it said, “regulates conduct, not speech. It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say.”(emphasis in original). “There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse.”
“Under the statute, military recruiters must be given the same access as recruiters who comply with the [schools’ non-discrimination] policy.”
Thats exactly it in a nutshell: the military gets special rights to not comply with the anti-discrimination policy. Any other person who fails to comply with the policy is properly denied access. But not the military.
I don’t agree with the first amendment challenges. But it would have been curious to see if this policy violates the original intent of the first amendment.
“But it would have been curious to see if this policy violates the original intent of the first amendment.”
I’m sorry. That should have been “third amendment.”
Thats exactly it in a nutshell: the military gets special rights to not comply with the anti-discrimination policy. Any other person who fails to comply with the policy is properly denied access. But not the military.
As usual actus you are dead wrong. The problem is that the school’s anti-discrimination policy is their own private policy. It has no basis in law. If the military were illegally discriminating against gays then the school could sue them and win. However, the military’s policy has been sanctioned by the Courts. The fact that the school disagrees with that policy is of no legal consequence. As much as they dislike the policy, they cannot overrule the Courts. The Universities are free to voice their opposition to the don’t ask don’t tell, but they cannot change the law. It is they and not the military (actually the government) who are doing the illegal discrimination.
“Thats exactly it in a nutshell: the military gets special rights to not comply with the anti-discrimination policy. Any other person who fails to comply with the policy is properly denied access. But not the military.”
Quite possibly because the military isn’t like other recruiters. Their job is different. And having a well-staffed military is far more important than what other recruiters do.
“The problem is that the school’s anti-discrimination policy is their own private policy. ”
Well ya. You’re barking up the wrong tree here. Thats not an issue at all.
“It is they and not the military (actually the government) who are doing the illegal discrimination.”
Whats illegal about what the schools are doing?
“Quite possibly because the military isn’t like other recruiters. ”
There’s lots of reasons why they get their special rights to ignore the rules. But theres no doubt that they do. THey get equality of outcomes, not equality of opportunity.
Whats illegal about what the schools are doing?
You’re kidding right? How about the Supreme Court ruling on the Solomon Amendment? Does that give you a clue?
“How about the Supreme Court ruling on the Solomon Amendment? Does that give you a clue?”
But that didn’t say that its illegal for schools to treat the recruiters according to their own rules. Schools can quite within the law not give recruiters their special treatment. But then they fail to meet the conditions for receiving certain government funds. But in no way are htey acting illegally.
Don’t you think that it is unfair for schools to lose millions of dollars for acting legally?
Actus, are you majoring in sophistry? Congress passed the Solomon Amendment that stated either the universities give military recruiters equal access or they forfeit Federal funds. The schools violated that law when they refused to allow military recruiters on campus. When they were threatened with loss of funds they sued to overturn that law. They lost. Thus when they were not allowing military recruiters on campus while taking Federal funds they were acting illegally.
“Don’t you think that it is unfair for schools to lose millions of dollars for acting legally?”
Unfair? In this case, certainly. Thats why I oppose the Solomon Amendment. But fairness and legality are not the same thing. Sorry if you hadn’t heard this before.
“Actus, are you majoring in sophistry?”
I studied law. So I try to be careful when I say someone is doing something “illegal.”
“Thus when they were not allowing military recruiters on campus while taking Federal funds they were acting illegally.”
Of course they’re not. Don’t be ridiculuous. The law makes it clear that the funds may not be ‘provided.’ The prohibition is on the government provision, not the recipient.
Also, the prohibition on provision only kicks in after the Secretary of Defense makes a finding as to the denial of access to the military, and publishes this in the Federal Register, and trasmits it to Congress and the Secretary of Education.
I don’t think any of that happened.