Monday, March 06, 2006

A Military Victory Over Law Professors

Today the Supreme Court unanimously reversed the 3rd Circuit's decision striking down the Solomon Amendment on free speech grounds. The amendment requires Universities who accept federal funds to allow military recruiters on campus despite the incompatible policies on homosexual hiring between the military and Law School career service offices. The case is Rumsfeld v. Forum for Academic and Institutional Rights, and Chief Justice Roberts' opinion is here.

Last week, a professor told me that although he respected the military and students who chose to serve, he despised the Solomon Amendment. I don't understand how you can reconcile that. It seems to me self-evident that where you ask for tax money from the government, it's OK for the government to ask for a little something in return, such as helping maintain the military which protects the silly academics' right to be opposed to the military. If academia despises the Solomon Amendment, they should likewise despise the government funding that allows them to take home 6 figures, and reject it.

And honestly, how the 3rd Circuit could come to the opposite conclusion after South Dakota v. Dole is simply beyond me. "Don't Ask, Don't Tell" is a silly policy, but it's Constitutional, and it doesn't erase the academic dependence on federal tax dollars, nor does it cut the strings that legitimately come with that cash.

To me, the despicable thing isn't that the Solomon Amendment exists, but that it should have to exist. Let's face it. The law schools opposed to it aren't free speech advocates. That's merely their back door. Nothing stops them from openly and loudly opposing the military policies, and in fact they do just that with disclaimers on E-mail and signs in the hallways saying, "The JAGs are coming, but that doesn't mean we like it." In fact, if they REALLY believed in free speech, they would let MORE groups with whom they disagree access the Law School and its students, so we can make our own decisions after hearing all sides.

The actual opposition is to two things - first, the military itself. Alas, we aren't as far from the days of spitting on the troops as I used to think we were.

But far more than that is the continued loss of their precious insulation from the real world. The Solomon Amendment forces academia to recognize that being a citizen involves not just rights, but responsibilities. It forces them to admit other people have legitimate, if different, points of view, and that they aren't all knuckle-dragging baby- killing ignorant gorillas. And it forces them to remember they are dependent on the good graces of the taxpayers for their grants, salaries, offices, research funds, and access to academic journals to publish their ideas. In short, it rudely reminds them they are not entitled to "free" money.

I do have to say that even before this ruling came down, this Law School allowed the military access, although they did have pretty hostile disclaimers. I don't know if they did before the Solomon Amendment was passed, though. But there is a large population of law students affiliated with the military here, and I hope UW continues - and in fact improves - its support of them.


Cato said...

I agree with your broad argument here as regards free speech, diversity of expression, etc.

There is a disturbing aspect to all this, though, at least for the Federalists among us: If the Federal Government can attach strings to money they "give" the states, the Federal Government wields tremendous power that it was never meant to wield. In reality, that tax money the Feds are lavishing on our institutions is from Washington taxpayers. If the Feds take more money in taxes, the State has to take less money, just to keep the tax burden even. If the State keeps taking as much money, and the tax burden thereby goes up, they are blamed, not the Feds. So under Solomon Amendment-type systems, all the Feds have to do to make the State toe their line is to jack up their taxes high enough that there isn't any room for the State.

Here's the real question: Why are the Feds taking our money to fund higher education anyway?

Sure, the Feds have this one right, constitutionally. But it all comes down to blackmail. I know you like the military, Orrin, but I bet you can find plenty of examples where the Feds use the same principles to blackmail the states into doing things you don't agree with.

Orrin Johnson said...

I agree that the commerce clause has been used too much, and that it's expansion has given the federal government too much power. And I agree that the Feds spend way, way, way too much money on things best left to the states, saving us all cash by cutting out beaurocratic middle men.

But this case goes beyond even that. As Chief Justice Roberts pointed out, the power to raise and support an army (Sec. 8, cl 12.) gives the Feds legitimate power to twist arms in favor of recruiters far harder - without an "opt out" clause of "you don't have to take our money." And while I'm very happy we don't have a draft any more, I don't question the government's right to draft people. Presumably, most profs aren't fans of the draft, either, so you'd think they'd welcome anything that keeps the military all volunteer...

The military is a different animal than, say, No Child Left Behind. Our Republic could survive without NCLB. It could not long survive without a robust military.

I understand your argument about it being Washington tax dollars that are supporting this. But we have power over that, too - we send a delegation of Senators and Representatives, very few of which (I'm quite certain) have ever voted against a federal law increasing education budgets. If states start feeling coerced by this, it's their responsibility to send a delegation that will not authorize such spending.

I'll also say that I consider education more fair game for the feds than a lot of other areas of regulation. Research done in Universities have far reaching national effects (ironically, most often when done in conjunction with the military), as does the education level of our population at large. I understand and sympathize with the more strident Federalists amongst us on that point, but happen to disagree with them on this particular policy.

The bottom line is that this case is about hostility to the military. Nothing more. And I'm glad even Ruth Bader Ginsberg reminded these aging hippies that official hostility to the military from a tax funded outfit is unacceptable.