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May 24, 2005
Solomon and FAIR
Don Herzog: May 24, 2005
No, no, not the Biblical king's legendary wisdom. The Supreme Court has granted cert. in a long-festering dispute between the federal government and law schools. The feds want to ensure that the military can participate in on-campus interviewing of law students for jobs. The law schools want to stick to their nondiscrimination policy, affirmed by the American Association of Law Schools. That policy holds in part:
A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, handicap or disability, or sexual orientation. A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity.
And, you guessed it, the military's "don't ask, don't tell" policy on gays and lesbians runs afoul of the policy. Or so the law schools think. So, as you'll see, they've resisted letting the military interview along with everyone else.
You can read the AALS policy, and much more legal documentation than you want to, here. Relax, I don't propose to offer an exhaustive analysis of what's at stake. The case comes bulging with procedural technicalities and doctrinal intricacies. But besides cluing you in to an intriguing puzzle that might have slipped under your radar, I do want to press one point. The capsule history to date:
1980s: acting on their own nondiscrimination policies, some law schools begin to exclude the military from on-campus interviewing. (Before "don't ask, don't tell," the military of course had more discriminatory policies.)
1990: the AALS adds sexual orientation to its nondiscrimination policies.
1994: Rep. Gerald Solomon (R-NY) proposes an amendment to the annual military appropriations bill requiring the Department of Defense to deny funding to any educational institution that denies military recruiters access. Solomon declares that he wants to
tell recipients of Federal money at colleges and universities that if you do not like the Armed Forces, if you do not like its policies, that is fine. That is your First Amendment right. But do not expect Federal dollars to support your interference with our military recruiters.
Despite objections from DoD itself, the amendment passes.
late 1990s: Further statutes and regulations expand the scope of the Solomon Amendment. They threaten to withhold funding to offending units such as law schools not just from DoD, but from other federal agencies as well. (For a while, they include financial aid for students.) And they threaten not just offending law schools, but their parent universities, with the loss of DoD funding. By the way, Congress has carved out an exception for schools with "a longstanding policy of pacifism based on historical religious affiliation," which I think they have every right to do, and which I'm glad they did.
1999: DoD regulations allow a school to escape the Solomon Amendment sanctions provided that it "presents evidence that the degree of access by military recruiters is at least equal in quality and scope to that afforded to other employers."
For some time, the law schools and the military had a reasonably amiable implicit agreement. The law schools found some symbolic way to mark their interests in their nondiscrimination policy and the military still had no problems interviewing law students. The schools, for instance, would put announcements of military interviews in their libraries instead of their placement offices, or they'd put the military's interviewers just off campus or in ROTC ofices instead of at the school. But this amiable agreement collapsed.
2001: post 9/11, DoD decides that only precisely identical access to that given other employers will qualify as access "equal in quality and scope." DoD alerts schools that "in today's military climate," anything less "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations." So the amiable agreement collapses. By 2003, every law school has buckled under, rather than risk the loss of millions of federal dollars.
2004: Congress puts the language of the 1999 DoD regulation in a statute. Most observers assume Congress wanted to lock DoD into its post-9/11 stance. But I actually think the agency would still have room to revert to its older interpretation of that language, the one permitting the amiable agreement. (The general rule under Chevron is that agency interpretations will be upheld unless they're manifestly unreasonable readings of the statute.)
FAIR, or Forum for Academic and Institutional Rights, is a cover for an anonymous group of law schools that have challenged the Solomon Amendment as unconstitutional. They want to stay anonymous to avoid government reprisals. Though you might find it curious, the case is centrally about the first amendment. The law schools want to express their opposition to employers' discrimination against gays. It is wholly uncontroversial in first amendment law that symbolic actions, from sleeping on the Washington Mall to burning a flag, can qualify as protected speech, and no one here denies that. So here, those token gestures — where the announcement is posted, where the military conducts their interviewers, and the like — arguably count as speech. They enabled the law schools to convey their chosen message about employment discrimination. And the DoD's instrumental interests in talking to students were unimpeded, or at least we now have on the record gushing letters from DoD officials to law schools to that effect.
The law schools also have an argument that requiring them to accord the military identical access would force them to convey a message they don't want to convey: something of the form, we approve of the military's employment policies. That reading of the requirement is properly controversial. But again, it is wholly uncontroversial in first amendment law that the state cannot require you to say something you don't want to say, cannot dragoon private actors to serve as its billboards. The government may not require students to salute the flag or require drivers to use license plates with political slogans.
Sparing you the procedural complications, I'll just say that FAIR lost in the district court and won in the third circuit. There are a host of first amendment issues in play, and I'll spare you those, too. I want to press just one point on the merits.
I've argued that generally, your constitutional rights don't protect you against state actions that happen to burden those rights. They protect only against state action aimed deliberately at those rights. And I've suggested that a merit of that stance is that it saves courts from "balancing" various interests. Here, for instance, it would be lunacy or worse to imagine that courts should decide the matter by asking what they think of discrimination against gays, or how important it is to law schools to oppose that discrimination, how important to the military to preserve the version of it they have under "don't ask, don't tell" and to demand identical access. It would be lunacy, too, to describe the law schools' policy as "anti-military." It happens to fall in this instance on the military. But on its face and as a matter of its actual justification, it's a policy against discriminating against gays.
More generally it would be lunacy to think that a court should try to decide what the right policy is. The government has made its policy calls, and the law schools have made theirs, and now the courts have to decide whether the government has done something unconstitutional, not whether it has made a sensible policy judgment. Plenty of crummy policies are perfectly constitutional. In that abstract way, this problem is just like the conflict unfolding between the Spanish government and the Church. That one happens to be occasioned by gay marriage, but you miss the point if you think you can figure out who's right just by deciding whether you approve of gay marriage.
Policy firmly aside, then, I think Congress and DoD were within their constitutional rights every step of the way — until late 2001. (So I'm not buying the bill of goods FAIR sold the third circuit, though I grant that the issues surrounding the spending clause and the doctrine of unconstitutional conditions are tricky.) When the feds said to the law schools, "sorry, no binders in libraries, no interviewing offices across the street, we have to get the identical treatment other employers do," they were insisting on more than their functional interests in being able to interview law students. They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies. Put differently, the feds were saying to the law schools, "you can't say that any more." I think that's the only plausible interpretation of the 2001 move. But we don't have to speculate. Again, DoD told us why they changed the policy: anything less than identical treatment "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations." But may the government tell people, under pain of coercion, "don't say what you want to say; say what we want you to say"? That's a classic loser under first amendment law.
I'm less impressed by the claim that giving the military interviewers identical access qualifies as forced speech. But I'm fully persuaded by the other side of the claim: when DoD pushed past the terms of the amiable agreement, they were acting to prevent the schools from conveying their chosen message. I suppose the government could try to argue that its legitimate functional interests in interviewing law students were actually impeded by the law schools' symbolic figleaves. But they haven't even attempted that argument. In their legal pleadings, they've been blithely asserting that "common sense" tells us that it's true. That won't do.
Again, the reasons to care about this dispute aren't centrally about whether the military or the law schools are right about discrimination against gays. They're about the ability of the government to push other institutions around even when those institutions are already giving the government what it has a legitimate claim to. You'll know you're taking constitutional law seriously once you can see the possibility that the law schools have a constitutional right to the amiable agreement even if you think the law schools' policy is inane and even if you adore the military.
Addendum later that day: You might brush off FAIR's claim in this way: you might think that the government is entitled to contract or not with whomever it likes, just like any other market actor. So you might think that if the government chose to react to law school employment discrimination policies by refusing to contract, it would be well within its rights. Settled caselaw emphatically rejects that view. In this case, the Court ruled that a new Democratic sheriff could not fire the nonDemocrat employees of the sheriff's office. In this case, the Court similarly ruled that a new Democratic public defender could not fire the Republican assistant public defenders in the office. In this case, the Court ruled that a county could not refuse to renew a contract with an at-will employee on the ground that he had been an outspoken critic of the county board of commissioners. And in this case, the Court ruled that a city could not remove a tower from its list of approved contractors on the ground that he had contributed to the mayor's opponent and put out signs for him.
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Comments
Posted by: Ralph Wedgwood
Don, you may well be right about the issue of forced speech: the fact that the First Amendment prohibits forced speech implies that the law schools have a right to *symbolic* protests against the military's anti-gay discrimination; but it does not guarantee that the law schools have any right to any more determined effort to dissociate themselves from the military's discrimination. (So I take it that your view is that the First Amendment right against "compelled association", which is often invoked in this case, only extends to "expressive association", and that merely "symbolic" dissociation is all that one needs in order to avoid such compelled expressive association?)
You may be right about the question of First Amendment jurisprudence. I'm not enough of a US constitutional scholar to say. But in addition to the issue of forced speech (or compelled expressive association), there is surely also at least one other issue -- namely, academic freedom. Academic freedom may not be a constitutional right, but it is something that should be of great importance to us academics. It crucially requires that universities should be free from excessive government interference in their decisions about how to carry out their central activities of teaching and research. Non-discrimination policies play a crucial role in fostering inclusive academic communities devoted to the pursuit of academic excellence. So academic freedom requires that governments should not interfere with universities' decisions about how best to implement such non-discrimination policies.
Given that practically all universities depend so heavily on government funding (in part because universities are engaged in constant all-out competition with each other for the best students and faculty), attaching such irrelevant conditions to vital government funding clearly counts as serious interference, and so is in direct conflict with academic freedom.
Finally, I thought I'd mention that in my view, allowing military recruiters on campus is a much less serious infringement of these non-discrimination policies than the ongoing presence of ROTC programs on most US campuses. These ROTC programs are essentially academic programs -- series of lectures and classes in campus classrooms -- that the government requires to have a big "No gays allowed!" sign on the door. Why is this any different from a situation in which the government banned Jews, say, from taking classes in medicine or civil engineering?
Posted by: Ralph Wedgwood | May 24, 2005 8:34:38 AM
Posted by: D.A. Ridgely
Did the government ever ban Jews from taking classes in medicine or civil engineering?
Also, FAIR's tactically understandable efforts to fight this on 1st Amendment grounds aside, the question remains what constitutional limits there may be on the federal government's right to exclude parties from eligibility to feed at the federal contract trough. There is a whole laundry list of requirements prospective contractors must meet to be eligible for award of federal contracts. How many of these may they attempt to avoid or obstruct under the guise of protected symbolic speech and still enjoy all that cash?
Posted by: D.A. Ridgely | May 24, 2005 9:14:08 AM
Posted by: Mona
Don, I've not followed this litigation, but it seems to me the govt here is not merely a state actor, but also is an employer. If Acme Inc. chose to end endowments to University Y because the law school at Y made Acme interview off-campus, surely Acme have that right.
I know in Rust v. Sullivan the High Court held that the fed govt is entitled to its own viewpoint as a service provider (and so could constitutionally make family planning funds contingent on not providing abortion referrals), and it seems to me it is also entitled to act as any other employer may.
Posted by: Mona | May 24, 2005 9:59:55 AM
Posted by: Larry
Don Herzog: Again, the reasons to care about this dispute aren't centrally about whether the military or the law schools are right about discrimination against gays.
A thought experiment:
Suppose that, for whatever reason (years of liberal administration perhaps), the military had become a model of open gay and lesbian tolerance; and suppose that, again for whatever reason, the law schools had become hotbeds of Christian fundamentalism that openly abhorred the gay "lifestyle". Would it really still seem as clear that they should be able, as a matter of constitutional right, to discriminate against military (or any other gay-friendly institution, for that matter) recruiting without penalty? Honestly? Or, would it be more likely that this really is about discrimination against gays after all?
Posted by: Larry | May 24, 2005 10:11:05 AM
Posted by: Don Herzog
Ralph Wedgwood: it seems to me a stretch to extend academic freedom to decisions on how to run placement offices at professional schools. I worry about invoking academic freedom every time a university or a faculty member doesn't prevail. There might be an argument to be made here, but I don't see it. And I propose to set ROTC classes aside, at least for now.
Mr. Ridgely and Mona: yes, there is well-settled law on what the government may do in contracting and regulating its own employees. Unlike many on the left, incidentally, I think Rust v. Sullivan was rightly decided, even though I strongly disapprove the conditions the Bush administration put on Title X funding there. But it's a stretch to assimilate this case to that setting. Here the government is not regulating its workers with an eye to getting its job done. It is reaching out to regulate with an eye to access to prospective future employees. And the funding that the Solomon Amendment threatens to withdraw is not payment to employees or for an ongoing program called "recruitment." It's for other things altogether. The differences matter.
Larry, I have no problem at all with your thought experiment: in your parallel world, I think law schools would have a right to signal their disapproval of military hiring practices as long as they didn't instrumentally get in the way of the government interviewing students.
Posted by: Don Herzog | May 24, 2005 10:59:27 AM
Posted by: Steve
D.A.-
Isn't the answer to your question obvious? Obstruction and avoidance is allowed anytime professors don't like government obligations attached to government money, and unacceptable if professors like the government obligations attached to government money.
Frankly, its laugable. Government strings are always unpleasant to the recipient of the money. Only when those strings affect the 'good guys', do those strings become not merely unpleasant, but actually unconstitutional. Yet another example of believing in democratic government, unless your democratic government actually dares to disagrees with you.
Steve
Posted by: Steve | May 24, 2005 11:03:34 AM
Posted by: Mona
Don: But it's a stretch to assimilate this case to that setting. Here the government is not regulating its workers with an eye to getting its job done. It is reaching out to regulate with an eye to access to prospective future employees. And the funding that the Solomon Amendment threatens to withdraw is not payment to employees or for an ongoing program called "recruitment." It's for other things altogether. The differences matter.
Matter how and why? Is the govt, as an employer seeking employees, not similarly situated to Acme Inc.? If the latter may withdraw endowments and scholarships if it feels it is being treated poorly by being placed in a recruitment ghetto, why should not the former also be able to withdraw funds and remain within the Constitution?
Posted by: Mona | May 24, 2005 11:16:01 AM
Posted by: CTW
why is there substantial federal funding of law schools, ie, what benefit does the fed gov (ie, the taxpayers) derive from this funding? DH suggests that the fed gov by funding law schools is "buying" prospective employees, but I don't see why - is there a critical supply shortfall (as there apparently is in science/engineering)?
Posted by: CTW | May 24, 2005 11:29:10 AM
Posted by: Don Herzog
Steve is playing gotcha, and so ignoring that (1) I'm disagreeing with much of FAIR's litigating posture, (2) I'm declaring that the (earlier) Bush administration had the right to impose restrictions on speech about abortion in the Title X setting, even though I disapprove of their doing so, and (3) I have no problems affirming the principle I'm arguing for in Larry's thought experiment. I guess gotcha is an awfully attractive game.
Mona: Acme can yank funding for any reason it likes, or no reason at all. It's a private actor. So it could yank funding specifically to condemn the speech of a law school, or the published scholarship of a faculty member, and not implicate the first amendment.
But for your analogy to support the government's right here, it's not enough to show that Acme could do it. You'd have to show that Acme was acting as an employer when it withdrew funding. And I can't see that.
This is one reason I tend to distrust the "government as employer" category that does run through the caselaw. It's too clumsy to sort out the actual issues. See these three cases for a sampling of the complications that the abstraction misses.
Posted by: Don Herzog | May 24, 2005 11:31:14 AM
Posted by: miab
"Matter how and why? Is the govt, as an employer seeking employees, not similarly situated to Acme Inc.?"
Yes, but the govt, as an endower, funder, and scholarship provider is not similarly situated to Acme Inc.
"If the latter may withdraw endowments and scholarships if it feels it is being treated poorly by being placed in a recruitment ghetto, why should not the former also be able to withdraw funds and remain within the Constitution?"
Putting aside the difference between government education funding and private funding, it should be noted that the government is not being placed in a recruitment ghetto. There is no discrimination here against DoD recruitment as compared to private company recruitment, any more than it would be anti-military discrimination to refuse to let the DoD recruit on campus because it failed to register before the same June 15 deadline imposed on all other employers, or because it failed to meet any other requirement the schools place on prospective employers, so long as that requirement was applied equally to military and non-military employers.
That's one thing that bothers me about the DoD's position here. They say they want "precisely identical access to that given other employers" [was that DoD's wording, or DH's?]. But they do have precisely identical access to that given other employers.
Posted by: miab | May 24, 2005 11:41:34 AM
Posted by: Larry
DH: in your parallel world, I think law schools would have a right to signal their disapproval of military hiring practices as long as they didn't instrumentally get in the way of the government interviewing students.
So, just to make it clear, and just to generalize the principle, your position is that fundamentalist (or, more generally, rightwing) organizations may discriminate against any government organizations they disapprove of (this being how they "signal their disapproval"), and the government must continue to fund them to whatever level they enjoyed before this policy of discrimination?
Posted by: Larry | May 24, 2005 11:48:53 AM
Posted by: D.A. Ridgely
miab is simply incorrect as a matter of fact. DoD recruiters are, at least in some cases, relegated to "separate but equal" facilities and access to publicizing their recruitment efforts; and, of course, such treatment is anything but equal.
Employment law is the wrong focus for the issue. Universities are not employees of the federal government by virtue of government contracts, they are independent contractors. And it is also well settled law that offerors for government contracts that do not meet specific requirements imposed by statute or regulation may be excluded from contracting even though theiy are otherwise able to perform the required work. Contractors are required to have EEO Affirmative Action plans (which I believe to be unconstitutional), small business subcontracting plans (probably not unconstitutional but certainly unrelated to the particular requirement being contracted), etc. (See Nash & Cibinic, Formation of Government Contracts, 3d Ed., Ch. 4.) Contractors must prominently display all sorts of EEO, wage rate (e.g., Davis Bacon or Walsh-Healy), drug-free workplace, etc., notices and comply with all sorts of other socio-economic, environmental, etc. policy directives that may have little or nothing to do with their actual contractual responsibilities.
That's simply the price of doing business with the federal government, which prospective contractors are free to take or leave. But universities want it both ways, as Steve pointed out, and so have managed to raise sophisticated legal challenges on constitutional grounds. Symbolic speech has always been a dubious branch of 1st Amend. jurisprudence, Mr. Herzog’s sanguinity on the issue aside. The universities' "have their cake and eat it too" argument here is a good reason why that is so.
Posted by: D.A. Ridgely | May 24, 2005 12:00:37 PM
Posted by: Mona
Dona claims: But for your analogy to support the government's right here, it's not enough to show that Acme could do it. You'd have to show that Acme was acting as an employer when it withdrew funding. And I can't see that.
No I don't. Just as Acme is a prospective employer of University's graduates, so is the DoD. The DoD is acting in the same role as private actor Acme as a prospective employer. If Acme has a right to withdraw funding because it objects to being treated badly in its recruitment endeavors, why does not the DoD when it has on the same hat?
DoD is not saying "we are withdrawing funding to punish you for your viewpoint about us in general"; it is saying "we are withdrawing it because of how you treat us, which is differently and invidiously WRT other prospective employers."
So, why may not DoD behave as any other prospective employer vis-a-vis recruitment privileges and using money as leverage when it is treated badly in that capacity?
Posted by: Mona | May 24, 2005 12:02:28 PM
Posted by: Mona
From Don'rt original post: When the feds said to the law schools, "sorry, no binders in libraries, no interviewing offices across the street, we have to get the identical treatment other employers do," they were insisting on more than their functional interests in being able to interview law students. They were insisting that the law schools no longer symbolically affirm their nondiscrimination policies. Put differently, the feds were saying to the law schools, "you can't say that any more."
Codswollop. The University is free to teach the evil of "don't ask, don't tell" to its heart's content. It can continue to say that. Posters may be plastered all over campus decrying the evil of the military in general, or its policies on gays in particular. The Board of Trustees and Faculty Senate may pass any resolutions they like condemning the DoD.
The DoD's position is simply that the University can't continue recruitment apartheid against it, and also expect to continue to receive its funds. It is not trying to force the University to "say" anything, but rather, is insisting on not being treated unequally when in the same role as private actors,i.e., when wearing its recruiter hat. Really, I cannot understand why you, Don, would see the govt's position here as remotely unconstitutional.
Posted by: Mona | May 24, 2005 12:23:13 PM
Posted by: CTW
"Universities are not employees of the federal government ... they are independent contractors."
this was the unspoken point of my query above re funding. it seems like it would be subtly different depending on whether the funding is for immediate tangible services rendered (research), for implicit future "services" (supplying quality lawyers), or just gov largesse. not necessarily from the technical perspective of constitutional/contract law but from the practical perspective of how much negotiating room each party has.
Posted by: CTW | May 24, 2005 1:18:45 PM
Posted by: catfish
The DoD is not being discriminated against. In fact, it is given special treatment. If a private lawfirm had a policy against hiring homosexuals, they would not be allowed to recruit on the campuses of the law schools at all. Allowing the DoD to recruit under different circumstances than other non-dicriminating employers is granting them special treatment. It is a prudent compromise that is in the best interests of the students and the law school.
Posted by: catfish | May 24, 2005 1:18:55 PM
Posted by: miab
D.A.R. writes: "miab is simply incorrect as a matter of fact. DoD recruiters are, at least in some cases, relegated to "separate but equal" facilities and access to publicizing their recruitment efforts; and, of course, such treatment is anything but equal."
Nonsense. DoD recruiters get no less access than any other employer with a "don't ask don't tell (and get fired if you do)" policy on homosexuality.
Or do I detect D.A.R. actually arguing in favor of equality of outcomes?
Posted by: miab | May 24, 2005 1:53:16 PM
Posted by: D.A. Ridgely
catfish:
Most law firms don't have contractual relationships with law schools or universities in the first place. No doubt a private university could indeed refuse discriminating law firms from recruiting on campus. For that matter, DoD's position is that they may refuse to permit military recruiting, too, except that if they do so they lose the opportunity to contract with the same federal government for studies, research, etc. Moreover, whatever you or I or anyone else thinks about the military's attitude toward homosexuals (and I think it's wrong), such discrimination is, at least for now, legal.
Posted by: D.A. Ridgely | May 24, 2005 1:59:44 PM
Posted by: miab
And catfish is right, DoD actually gets specially favorable treatment compared with other discriminatory employers.
I fact, DoD's argument turns reality on its head -- DoD argues that having 'separate but equal' recruitment facilities "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations." Instead, DoD should be thanking the law schools. DoD should issue a press release saying "by providing us with separate but equal recruitment facilities where private employers with similar policies regarding homosexuality are completely barred, the law school sends the message that employment in the Armed Forces is so much MORE honorable and so much MORE desirable than employment with other organizations, that they are willing to sidestep their own anti-discrimination policies in order to allow their students access to this terrific opportunity. THANKS, AALS!!!"
Posted by: miab | May 24, 2005 2:01:17 PM
Posted by: Mona
catfish writes: The DoD is not being discriminated against. In fact, it is given special treatment. If a private lawfirm had a policy against hiring homosexuals, they would not be allowed to recruit on the campuses of the law schools at all. Allowing the DoD to recruit under different circumstances than other non-dicriminating employers is granting them special treatment. It is a prudent compromise that is in the best interests of the students and the law school.
Of course the DoD is being discriminated against; that is the whole point of universities' "symbolic speech." They are saying: "Meet with our students at Denny's, not here, not with everyone else. We disdain to include you with the decent folks."
Maybe the prior arrangement was a prudent compromise. But it is not one the DoD is required to accept. It may say: "Fine, you may impose your apartheid arrangement, but we won't pay for any more of your research in the meantime." Acme could do that, and so may DoD with its recruiter's hat on, without running afoul of the First Amendment.
Really, if Bob Jones University only permitted black law firms and businesses to recruit off-campus, no one here would be claiming Bob Jones was not discriminating and that the blacks should accept this "compromise." The inherently invidious nature of this arrangement would be apparent to all. So should it also be with regard to military recruiters in the actual situation under discussion.
Posted by: Mona | May 24, 2005 2:04:46 PM
Posted by: SamChevre
I would add one more key date: 1984, Grove City College vs. Bell
In this case, it was held that the government could require compliance with Title IX of the Civil Rights act, by the college, as a condition of students' receiving financial aid (Pell grants).
Posted by: SamChevre | May 24, 2005 2:15:41 PM
Posted by: Mona
miab writes: DoD argues that having 'separate but equal' recruitment facilities "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations." Instead, DoD should be thanking the law schools. DoD should issue a press release saying "by providing us with separate but equal recruitment facilities where private employers with similar policies regarding homosexuality are completely barred, the law school sends the message that employment in the Armed Forces is so much MORE honorable...
Assuming, arguendo, that that is all true, it does not change the fact that the DoD may decline to accept that view, and may still refuse to be pleased by the compromise. Law firms that discriminate against gays are free to deny all endowments and funding to the university in return for not being not allowed on the recruitment bus. The DoD is also free to decline funding by virtue of merely being forced to the back of the vehicle (or, for a better analogy, in a separate one).
It doesn't matter what anyone of us thinks about the reasonableness of the prior compromise, or whether the DoD is being discriminated against less severely than the universities might have opted for; the point is, it should be constitutional (which does not mean it is necessarily wise or prudent) for the DoD to decline funding for being treated in a manner that is discriminatory. Even if the discrimination could be more severe.
Posted by: Mona | May 24, 2005 2:22:03 PM
Posted by: catfish
Mona wrote: "the point is, it should be constitutional (which does not mean it is necessarily wise or prudent) for the DoD to decline funding for being treated in a manner that is discriminatory. Even if the discrimination could be more severe."
As I understand it, it is not only DoD funds that are going to be withheld, but all or most government funds. I agree that the DoD has a right not to use it's funds to back projects at lawschools. What I object to is the withholding of unrelated government funds.
And finally, it seems a little rich to me that language like "apartheid", "segregated," and "back of the bus" be used when referring to the DoD, the organization that is discriminating against individuals. The DoD is being treated better than private organizations with identical policies.
Posted by: catfish | May 24, 2005 2:40:41 PM
Posted by: miab
Mona writes: "Of course the DoD is being discriminated against; that is the whole point of universities' "symbolic speech." They are saying: "Meet with our students at Denny's, not here, not with everyone else. We disdain to include you with the decent folks.""
But the DoD is not being discriminated against *whatsoever* (not just "less severely"). It is treated the same as or better than other employers that choose to have discriminatory hiring policies. Its status as being the DoD, or the government, is not at all taken into account by the law schools. The criteria are government/private neutral. Every other anti-gay-hiring employer is sitting in that Denny's along with the DoD. The schools are not saying "We disdain to include *the DoD* with the decent folks." They are saying "We disdain to include *employers with anti-gay-hiring policies* with the decent folks."
Here you have a "race-neutral" rule being applied by the law schools (where "race" is "private or government", and the rule is "If you want to recruit on campus, don't have a hiring policy that discriminates on the basis of sexual orientation").
The schools are applying the race-neutral rule in a race-neutral manner (putting aside the fact that they are in fact applying reverse discrimination, in favor of government). The race-neutral rule results in some members of each race being excluded from campus interviews, always based on the same race-neutral criteria.
Yet Mona views this as discriminatory against a member of the traditionally disfavored race (i.e., government, which is traditionally disfavored in academia). She wants that member of the disadvantaged race to get the same benefits that everyone who did in fact meet the race-neutral criteria will get. She calls it discriminatory when that member of the traditionally disadvantaged race is treated the same as (actually better than) all the members of the non-disadvantaged race who also failed to meet the race-neutral criteria.
This is not just less-severe discrimination against the DoD. It is not discrimination at all -- except insofar as there is PRO-government discrimination, because DoD gets to have some access, whereas other anti-gay employers get none.
Therefore, Mona's assertion that: "it should be constitutional . . . for the DoD to decline funding for being treated in a manner that is discriminatory," has no bearing on this issue. The assertion you need to support has to be: "it should be constitutional for the DoD to decline funding for being denied full access to on-campus recruiting EVEN THOUGH IT IS NOT being treated in a manner that is discriminatory IN ANY WAY WHATSOEVER, and in fact is being given benefits that other similarly situated employers do not get."
I may even agree with that assertion, but accepting the premise that the DoD is suffering from discrimination simply sidesteps the real issue.
Posted by: miab | May 24, 2005 3:02:13 PM
Posted by: miab
Also, re the Bob Jones University analogy:
Mona writes: "Really, if Bob Jones University only permitted black law firms and businesses to recruit off-campus, no one here would be claiming Bob Jones was not discriminating and that the blacks should accept this "compromise." The inherently invidious nature of this arrangement would be apparent to all. So should it also be with regard to military recruiters in the actual situation under discussion."
But you're twisting the analogy mid-stream. In this hypothetical, the black vs. white distinction is parallel to doesn't-hire-gays vs. does-hire-gays. To get a DoD analogue you need to make one of the black firms different from all other firms in a non-relevant way. Let's say it's based in Wisconsin, and no other firm is.
Now, your analogy works like this: The Wisconsin firm shouts "Bob Jones discriminates against Wisconsin firms!!!". Bob Jones says "No we don't; we don't care that you're from Wisconsin. We care that blacks work at your firm. We also exclude Texas, New York, and Idaho firms that have blacks."
BJU would be correct. They are not discriminating against Wisconsin firms.
The only discrimination going on here is against firms that have policies of not hiring gays. That discrimination may or may not be inherently invidious, but it has nothing to do with anti-DoD discrimination.
Posted by: miab | May 24, 2005 3:12:47 PM
Posted by: Mona
miab writes: Yet Mona views this as discriminatory against a member of the traditionally disfavored race
No, no and no. I am saying the treatment of the DoD recruiters, and any others similarly or more severely discriminated against for their anti-gay policies, is also itself discriminatory, is meant to be, and is arguably a justified variety of discrimination. That is the whole point of the universities' "symbolic speech." It doesn't matter whether it applies across the board, and/or in varying degrees to all who discriminate against gays; or whether, as you put it, the universities are therefore "facially neutral" wrt all entities that discriminate against gays.
My points are that (1) all of them, including DoD, have the right to respond by withholding financial benefits to the universities, and (2) it manifestly is discrimination to segregate the DoD from the other recruiters by making them conduct interviews off-campus -- not that they are akin to a "traditionally disfavored race," but rather, that if you apply the same treatment to such a racial category, it becomes immediately absurd to describe such separate and invidious treatment as anything other than discrimination. Maybe good and justified discrimination in the case at hand, but that does not mean the DoD is not legally entitled to respond by withholding govt funds in protest of the behavior directed against it. Doing so does not impinge on the universities' speech rights, contrary to what Don argues.
Posted by: Mona | May 24, 2005 3:27:24 PM
Posted by: Larry
miab: The only discrimination going on here is against firms that have policies of not hiring gays. That discrimination may or may not be inherently invidious, but it has nothing to do with anti-DoD discrimination.
This seems like a lot of twisting and turning for very little yardage. The DoD is simply a member of the class of "firms" that are being discriminated against, so clearly it is being discriminated against, even if to a lessor degree than other members of the class. Which, everyone agrees, the law schools are perfectly free to do. But which, as far as I understand Don Herzog's argument, only the DoD must continue to support. And as far as I understand Mona's argument, only the last statement is in dispute.
Posted by: Larry | May 24, 2005 3:45:03 PM
Posted by: washerdreyer
Don-
Two of your three links are to Connick. Also, according to many of the law schools (I know this is true of NYU, for instance), they knuckled under not because of the threatened cuts to them, which the law schools don't particularly need, but because of the threatened shut down of government funding to the Medical schools affiliated with the same university which are very dependent on Federal funding. Personally, I wish the law schools hadn't blinked and just tried to win the public relations war over why the government had decided to stop help training doctors in order to protect its ability to discriminate against homosexuals.
Posted by: washerdreyer | May 24, 2005 3:59:11 PM
Posted by: miab
Mona writes: "No, no and no. I am saying the treatment of the DoD recruiters, and any others similarly or more severely discriminated against for their anti-gay policies, is also itself discriminatory, is meant to be, and is arguably a justified variety of discrimination."
Ah. Agreed.
"(2) it manifestly is discrimination to segregate the DoD from the other recruiters by making them conduct interviews off-campus"
OK. But by phrasing it the way you do, you make it look as if the discrimination is against the DoD as such, rather than against the class of anti-gay employers, of which DoD happens to be a member.
Earlier, you wrote: "it should be constitutional (which does not mean it is necessarily wise or prudent) for the DoD to decline funding for being treated in a manner that is discriminatory."
But DoD's objection is not to the discrimination. Rather, their objection is to having the discriminatory rule apply to the DoD equally in the same way it applies to everyone else (as opposed to the DoD getting a special exception). If the DoD were actually protesting the "discrimination", it would take the position that law schools should allow *all* anti-gay employers to interview on campus, thus ending anti-anti-gay discrimination by law schools.
But that's not what DoD is saying. DoD is *not* objecting to the discrimination. It simply wants to be the one black firm allowed to recruit on Bob Jones's campus. Therefore, it is not the "discrimination" that DoD is objecting to, it is the absence of special treatment for DoD.
Once DoD stops pretending that there is discrimination against the DoD as such, and admits that it is against all anti-gay employers as a class, it can make a more straightforward argument without trying to invalidate the entire AALS policy as it applies to non-DoD employers. It could say: "It is constitutional for the government to decline funding because the DoD is being denied full access to on-campus recruiting, even though there is no discrimination against it for being the DoD, nor for any other reason that the government would object to when applied to any employer other than the DoD -- in other words, no RELEVANT discrimination against the DoD." That's the position you need to support in order to support the DoD's position.
If they wanted to alleviate some of the 1st amendment issues, DoD should say that it would take the same position if it were barred from on-campus interviews for any reason whatsoever, no matter how political or apolitical, including failure to submit the proper paperwork. They would argue: "The government simply has an absolute unfettered right to condition funding on absolute unfettered access by DoD to on-campus recruiting. We don't care why we're not allowed there, we just aren't and that's enough."
Posted by: miab | May 24, 2005 5:03:58 PM
Posted by: Don Herzog
washerdreyer, I fixed the link: the missing case was Givhan. Thanks. Meanwhile, folks, more cases to keep you busy and entertained...but not just for fun.
The more strenuously Mona insists that putting DoD across the street or putting their info in a folder is apartheid or discriminatory, the more she makes the first amendment case that the government really cannot do this: because the more she is saying, what's at stake here is what message the law school is conveying. Settled law does not in fact allow the government to run its own workplaces or contract with outsiders on the basis of their views. The market norms here do not work the way she imagines they do. In this case, the Court ruled that a new Democratic sheriff could not fire the nonDemocrat employees of the sheriff's office. In this case, the Court similarly ruled that a new Democratic public defender could not fire the Republican assistant public defenders in the office. In this case, the Court ruled that a county could not refuse to renew a contract with an at-will employee on the ground that he had been an outspoken critic of the county board of commissioners. And in this case, the Court ruled that a city could not remove a tower from its list of approved contractors on the ground that he had contributed to the mayor's opponent and put out signs for him.
Mona is of course free to argue that all this caselaw is systematically misbegotten. But it is the law. I've taken the liberty of inserting the description of these cases as an addendum onto the main post, for those who don't read down this far.
So too Mr. Ridgely suggests that symbolic speech is on shaky footing. I emphatically disagree: it's extremely well entrenched in the law, and it should be. What we care about, finally, is the government regulating, punishing, and the like, on the basis of the views people express. Whether they express them in writing or in speech or in actions is neither here nor there. The Court has said, quite sensibly, "It is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." But what matters is the rationale for state action, not whether it burdens action or speech. And if the state sanctions action on the grounds of its meaning, as DoD has done here, then it matters not a whit that it's action and not speech.
Posted by: Don Herzog | May 24, 2005 5:31:29 PM
Posted by: CTW
DH:
my impression is that you tried to keep the post sufficiently high-level that laymen can "play" too. under that assumption, here goes.
your basic outline seems to be: there's an undisputed free speech right to "symbolic" actions and the law school policy qualifies; hence, there's a first amendment issue; but a gov law that merely "burdens" a right isn't enough, it has to directly attack the right; the legislation threatens to yank funding if the law school doesn't provide unfettered access, ie, if the law school policy is enforced.
assuming this is correct, it appears that there are two questions:
- is demanding unfettered access a burden on the symbolic right or a direct attack? since the symbolic action is "fettering" access, requiring it to be "unfettered" seems pretty direct. I understand this to be your position.
- is yanking funding equivalent to "pass[ing] a law ... abridging free speech"? since gov funding is all pervasive, I'm guessing that at least in broad outline this is settled law.
don't quite see how questions of employer/contractor/angel status, parallels to non-gov entities, whose discriminating against whom, etc, enter in. from a lay perspective, based on your description it seems fairly straightforward, modulo the typical ambiguity of the law.
note: I was composing this as DH was posting his last comment, so he's somewhat answered question 1 (at least from his perspective). but I'd like to hear about Q2 as well.
Posted by: CTW | May 24, 2005 6:08:21 PM
Posted by: Don Herzog
CTW, yes, I very much want this discussion to be both available to nonlawyers and not to make mincemeat of the relevant law. And I think that's possible.
On your other question, it depends on the justification the government has for demanding identical access. So suppose the government said, "look, you may be putting us across the street for expressive purposes of your own, but it's worsening our interview process: fewer students show up. So we want the same treatment everyone else gets, not to thwart your message, but to improve our recruitment." Then the government should prevail, unless this rationale looked pretextual -- and one obvious way for the law to check that is ask for a showign that in fact the access across the street is worse. (A nice question is what if the reason the access is worse is that some law students believe the message the school wants to send. It is actually pretty easy under settled law to show that if that's the reason the students don't show up, there's a first amendment problem thwarting it, too. But that one does get annoyingly technical.)
Does that help?
Posted by: Don Herzog | May 24, 2005 6:17:22 PM
Posted by: CTW
not quite. you're separating the symbolic action and the message, and when the gov acceded to the "amiable arrangement", that was OK since the compromise was essentially to accept that separation: the school got to send it's message and the gov got access, tho fettered. but now the gov is demanding unfettered access, and I don't see how to separate the action and the message. hence, it seems like the gov is directly attacking the message, even tho that's to all evidence not their intent.
but my continuing question is number 2 about yanking funding as an enforcement mechanism.
Posted by: CTW | May 24, 2005 6:51:07 PM
Posted by: Don Herzog
No, the evidence is that sanctioning the message is their intent:
DoD alerts schools that "in today's military climate," anything less "sends the message that employment in the Armed Forces is less honorable or desirable than employment with other organizations."
And the government has produced no evidence that its access under the amiable agreement was functionally worse than it would be with identical access, that is that it gave it any less access to actual student candidates.
Meanwhile, yes, yanking funding, or for that matter refusing to provide it in the first place, can implicate the first amendment. You can review the cases I provided in a comment to Mona and now in the addendum to the post.
Posted by: Don Herzog | May 24, 2005 8:06:33 PM
Posted by: Don Herzog
Sorry, Larry, I notice that I missed this from you in the day's haze of grading papers:
So, just to make it clear, and just to generalize the principle, your position is that fundamentalist (or, more generally, rightwing) organizations may discriminate against any government organizations they disapprove of (this being how they "signal their disapproval"), and the government must continue to fund them to whatever level they enjoyed before this policy of discrimination?
That's broader than the policy at issue here. But yes, any rightwing organization may find symbolic ways of expressing condemnation of government policy provided that they don't interfere with the instrumental objectives of the government, and any rightwing organization that does so may not be sanctioned for so doing, including by withdrawing funding.
Larry, I feel like you want me to 'fess up that I don't believe in principle or in constitutional law. But the thing is, I actually do. In a big giant important overwhelming way.
Posted by: Don Herzog | May 24, 2005 8:11:49 PM
Posted by: noah
I read somewhere that Ruth Ginsburg during her tenure at the ACLU had hired 50 lawyers none of whom were African American.
How likely is any law school to prohibit her from interviewing prospective law clerks on campus (however unlikely that scenario might be)?
Get real,this is all about hatred of all things military.
Posted by: noah | May 24, 2005 8:13:03 PM
Posted by: Don Herzog
With characteristic good humor and charity, noah writes,
Get real,this is all about hatred of all things military.
Might I ask noah how he knows what's really going on in law schools?
Posted by: Don Herzog | May 24, 2005 8:25:53 PM
Posted by: Bret
Don Herzog wrote: "I very much want this discussion to be both available to nonlawyers..."
Oh goody! Here goes then...
So we can't yell "FIRE!!!" in a crowded theatre because it creates danger. Is the symbolic equivalent of yelling "you shouldn't join the military because military personnel are immoral" during "time of war" also a clear and present danger? Perhaps it's not clear and present enough? What if the war were more serious? For example, if the United States was invaded, cities destroyed, and if we didn't stop the enemy, we would all be slaughtered if we didn't somehow manage to recruit enough lawyers - would the government be allowed to suppress such symbolic speech at that point? Just curious.
I'm also curious as to who the law schools symbolic speech is directed. If it's directed toward the students, then I'm concerned because if the students don't have adequate moral capacity to decide for themselves whether or not the governments policies are moral, then, as far as I'm concerned, they really shouldn't be allowed to graduate and practice law in the first place. Lot's of lawyers running around with no sense of morality seems like a bad thing.
If the symbolic speech is directed at the military, then it is interesting that the symbolic channel picked does seem to me to be likely to hamper the ability of the military to recruit. I've recruited on college campuses before (certainly NOT for the military though) and when you're stuck off campus it's much harder to get a good draw.
If the symbolic speech is directed at the general public, then they've failed miserably because I doubt many people have heard about this (I never had until this post).
Though the cynic in me strongly suspects that the AALS members just created this symbolic speech so they could feel good about themselves, even if it's a hassle for both the students and military.
Posted by: Bret | May 24, 2005 9:13:20 PM
Posted by: Larry
Don: Larry, I feel like you want me to 'fess up that I don't believe in principle or in constitutional law. But the thing is, I actually do. In a big giant important overwhelming way.
Okay, great. Just a coincidence that, to illustrate this overwhelming belief, you pick an issue in which that icon of left-liberal contempt, the military, is supposed to be forced to fund the very institutions that manifest that contempt, then, is it?
(I understand about the "day's haze", by the way -- you're very good in responding.)
Posted by: Larry | May 24, 2005 9:24:25 PM
Posted by: Don Herzog
Bret, there is of course a ton more to first amendment law than clear and present danger. But what survives of that in the law ordinarily demands a "close nexus" between the speech and the bad outcome. As to your cynical suspicion that the AALS or other groups adopt antidiscrimination policies to "feel good about themselves," um, what's your evidence?
And then, oh, honestly, Larry: how utterly tiresome of you. This liberal has been extraordinarily impressed by every military guy he's ever met. And I mean extraordinarily. And the military is not forced to fund law schools or other academic institutions. It is precluded from withdrawing funding for one very particular kind of reason, that's all.
So why did I choose this issue? Because I happen to know about it -- I don't like interpreting my dubious role as blogger as license to spout off about anything and everything under the sun -- and because the Supreme Court has granted cert. on it. My primary purpose in writing this post, as I said, was to alert people who don't know what's unfolding to an interesting story. Past there I wanted to press one point on the constitutional merits.
But if you want to join the gotcha brigade, and try to catch me out over and over again in my left-liberal sanctimonious duplicity, I sure can't stop you.
Posted by: Don Herzog | May 24, 2005 9:36:37 PM
Posted by: Bret
Don Herzog wrote: "As to your cynical suspicion that the AALS or other groups adopt antidiscrimination policies to "feel good about themselves," um, what's your evidence?"
None, of course, that's why it's an admittedly cynical suspicion. The point is that in my perception there is no convincing evidence that the AALS policy towards the military is doing any good, is positive in any way, or signicantly benefits anybody. It's pretty clear to me that the military is not going to change their anti-gay policy. Since I can't perceive any tangible beneficiary of the AALS initiative, coupled with the fact that valuable court time is being spent because of them, leads me to my cynical assumption, in lieu of other convincing evidence, that the AALS is therefore doing it to aentertain or feel good about themselves.
I guess today I would be "disaffected" according to the Pew poll. Hopefully, tomorrow I'll be back to my more "upbeat" self. :-)
Posted by: Bret | May 24, 2005 9:56:28 PM
Posted by: Don Herzog
There is no "AALS policy towards the military." There is a general AALS policy on discrimination that happens in this instance to fall on the military. And one might as well say that "valuable court time is being spent because" in 2001 DoD decided that it had lost its patience with the law schools' symbolic figleaves. Rather than point fingers, I'd say that valuable court time is being spent to decide what the dictates of the first amendment are.
I'll look forward to the reemergence of your characteristically upbeat self, Bret. Even if that's the one that mistakes me for a milquetoast moderate. ;)
Posted by: Don Herzog | May 24, 2005 10:15:31 PM
Posted by: Bret
Don Herzog wrote: "There is a general AALS policy on discrimination that happens in this instance to fall on the military."
Just curious. Has the "sexual orientation" portion of that policy ever affected any other employer? If not, then it's de facto a policy toward the military.
Posted by: Bret | May 24, 2005 10:22:04 PM
Posted by: CTW
"the evidence is that sanctioning the message is their intent. DoD alerts schools ..."
tnx for the clarification. having read your post several times, I must have had a mental block to have missed this. perhaps subconsciously I rejected the possibility that any org would be foolish enough to hand a loaded gun pointed at their foot to the opposition.
Posted by: CTW | May 24, 2005 10:29:27 PM
Posted by: D.A. Ridgely
Mr. Herzog writes: “So too Mr. Ridgely suggests that symbolic speech is on shaky footing. I emphatically disagree: it's extremely well entrenched in the law, and it should be.”
I respond that there is plenty in constitutional law that is both entrenched and yet (the word I specifically used) dubious, by which I mean both the reasoning and the motivation behind the “settled law” in this area is suspect. As Mr. Herzog notes to Mona, there is no contradiction in the assertion that X is bad law but nonetheless the law. Mr. Herzog’s “and it should be” is merely his opinion.
Mr. Herzog goes on to state that “yanking funding, or for that matter refusing to provide it in the first place, can implicate the first amendment. You can review the cases I provided in a comment to Mona and now in the addendum to the post.”
Well, now, “can implicate” is pretty doggoned open-ended. I haven’t read all the cases, but they all appear to deal with state and local government, not with the federal government setting policy in furtherance of its responsibility to provide for the national defense. I’m not merely flag waving here – there is a case to be made for greater constitutional deference by the courts when the other branches of government decide a policy is required for national defense purposes.
That is, by the way, probably the sole reason why discrimination against homosexuals in the military has not yet been struck down by the courts. Again, bad law or not, it’s the law. The fact, also, is that the courts not only have sanctioned other forms of discrimination in the military, e.g. bans on women in direct combat roles, they have sanctioned what would be gross violations of 1st Amendment rights for those serving under uniform if those same persons were civilians.
I hope Mr. Herzog would not, in any case, wish to argue that those cases he linked to were not distinguishable or that a Pickering analysis could not possibly be decided in the government’s favor here.
I don’t doubt that there are 1st Amendment issues in play. What I deny is that they should form the basis for the decision. In this particular situation, the particular speech acts under which the AALS is seeking to bite the hand that feeds it are simply trivial. In fact, I think it is the AALS here that is acting pretextually, Mr. Herzog’s personal beliefs aside. (By contract, I would be amused but not surprised to learn that those opposing Solomon are also enthusiastic supporters of campaign finance ‘reform’ directly intended to limit purely political speech.)
Again I note that contractors are required to have affirmative action policies in order to be eligible to contract with the federal government and to satisfy any number of other collateral requirements. I seriously doubt that obstructive measures characterized by such contractors as symbolic speech opposing affirmative action would be accepted as legitimate defenses when the government declared them ineligible for contract awards.
This is really just a classic example of the law being naught but mere politics pursued by other means. Give the AALS a month to draft the briefs and I suspect it could come up with facially plausible arguments why the Solomon Amendment violates the right to a speedy trial, the prohibition against double jeopardy and constitutes a Letter of Marque and Reprisal.
Posted by: D.A. Ridgely | May 24, 2005 10:49:45 PM
Posted by: Mona
Don writes: Mona insists that putting DoD across the street or putting their info in a folder is apartheid or discriminatory, the more she makes the first amendment case that the government really cannot do this: because the more she is saying, what's at stake here is what message the law school is conveying. Settled law does not in fact allow the government to run its own workplaces or contract with outsiders on the basis of their views.
No, what is at stake is that the DoD is like any other actor who is a recruiter. The govt sometimes is a mere employer/recruiter/provider, and in those capacities, (usually, there are irrelevant exceptions) enjoys the same rights as non-governmental entities in those capacities. None of the case law you cite is on point.
The DoD may object to being discriminated against as a recruiter. It may do so by withdrawing funds. The views or viewpoints at issue are irrelevant; the DoD is among those firms being discriminated against (for behaving legally), and no matter what the reason for that discrimination might be, if that reason is legal, the DoD is entitled to respond by declining to send any more monies to the universities. The treatment of the DoD as a recruiter here is the issue.
Posted by: Mona | May 25, 2005 12:09:55 AM
Posted by: murky
"The government may not ....require drivers to use license plates with political slogans."
And yet it can require us to use coinage with religious slogans ("In God We Trust")
Posted by: murky | May 25, 2005 7:32:15 AM
Posted by: noah
Don,
The defense of the nation is arguably the fundamental duty of the federal government. It seems to me a bit bizarre that some law schools can undermine that duty by in effect declaring the policies of the US government immoral. Not only bizarre but anti-democratic and arrogant.
A commenter with characteristic lack of humor has labelled "don't ask, don't tell" as "evil". As I recall, the choices were either that or an outright ban from serving at all. I hazily recall the debate...but I seem to recall there were principled arguments on both sides. But of course I open myself to the charge of being "anti-gay" or "homophobic" as opponents of SSM have been in prior threads. How about concerned for the safety of the nation?
And don't you think it is shocking that a sitting Supreme Court justice has a hiring history that would land a "normal" corporation in court? There is probably a loophole for the ACLU.
Posted by: noah | May 25, 2005 7:33:36 AM
Posted by: murky
The government's complaint of a failure to treat DOD recruiters identically is basically a cry of lese majesty--not one I'd expect our constitution to have a lot of sympathy for.
Posted by: murky | May 25, 2005 7:42:06 AM
Posted by: Larry
DH: [The military] is precluded from withdrawing funding for one very particular kind of reason, that's all.
As to whether it is or not in fact, we'll see, no? As to whether or not it should be ("settled law" aside), I think your case rests upon a weak assumption that in this case the disreputable doctrine of "separate but equal" (credit to D.A. Ridgely and Mona for the analogy) really is just that -- whereas it seems much more likely that inequality (of access) is integral to the "symbolism" of the law schools. It's entirely consistent for the military to assert that it objects to the message, as well as to the manner of the message, the latter being the reason for the yanked funding.
As for, "And then, oh, honestly, Larry: how utterly tiresome of you," I'm a bit surprised at your easily offended virtue -- methinks you doth protest too much, perhaps?
Posted by: Larry | May 25, 2005 8:28:26 AM
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