Steve Sachs Duke


Saturday, November 08, 2003


Don't Ask, Don't Receive: I've been following the lawsuit filed by a group of Yale Law students over the military's "Don't Ask, Don't Tell" policy. Many schools, Yale Law included, had restricted the military's recruiting efforts on campus under a policy of non-discrimination on the basis of sexual orientation. The students are challenging military regulations under the Solomon Amendment, a law conditioning universities' federal funding on access for military recruiters. According to the Yale students' complaint (PDF), they chose to be part of an association that rejects discrimination on the basis of sexual orientation, and forcing the school to compromise that message violates their rights of "expressive association, freedom of speech, freedom of association in pursuit of common objectives and freedom of intimate association."

In my opinion, the real question here is one of statutory interpretation. The Solomon Amendment required that universities provide "access" to military recruiters, not necessarily that they provide the same level of access to the military recruiters as they do to corporate recruiters (as the Pentagon sees it). (I can't find a copy of the most recent text online, but an older version of the law--which has since been amended--is available here.) As one judge noted in response to a similar lawsuit (PDF 1, PDF 2), it's not clear "how the statute requires absolute parity when all that it requires is that a school not 'prohibit' or 'in effect prevent' military recruiting efforts."

The Yale students also argue that the statute should only affect funding to Yale Law School, not all of Yale University. But the language of subsection (b) seems to read differently (at least in the 2002 version of the law):

No funds [as described later in the amendment] may be provided by contract or by grant (including a grant of funds to be available for student aid) to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents ..."

The "including" parentheticals are clearly meant to expand, rather than restrict, the scope of the limitation. If the instutition or any subelement blocks access, then the whole institution (including all subelements) gets shut out.

The focus of much of the attention, however, has been another claim--that the Solomon Amendment violates students' and universities' freedom of association. Without expressing any opinion on the merits of "Don't Ask, Don't Tell" or the universities' choice to restrict recruiting, I'm not sure I buy this argument. The government places conditions on federal funding all the time. For instance, a Catholic church group has a constitutional right to accept only Catholics as members, or to proselytize and try to convert people to Catholicism. That's part of their First Amendment freedoms; if the government tried to take it away, it would be violating their rights. But if the government didn't want to fund the church group because it proselytizes or discriminates on the basis of religion, no one would say that it's violating the church group's rights--they don't have a right to federal funding. (In fact, many people on the left have tried to argue that school vouchers are unconstitutional because they might send government money to religious schools; the schools' First Amendment right to be religious doesn't guarantee them access to taxpayer money.)

There might be limits on how Congress can use the spending power--they can't require federally funded groups to vote Republican or swear loyalty oaths. But there's a difference between specifically subsidizing or penalizing speech, and trying to forward other legitimate government interests (like a well-functioning military) that happen to impinge on a particular group's viewpoint. So my guess is that the statute itself will survive judicial scrutiny, but perhaps not the Pentagon's current interpretation of it.

(Another interesting issue is posed by the Amendment's exception for schools with a longstanding tradition of religious pacifism. Could a school with a longstanding tradition of secular pacifism sue for equal treatment? And isn't the government discriminating among viewpoints by making exceptions for pacifists but not others? But these arguments seems similar to those surrounding conscientious objectors--whether objectors can rely on secular or only religious principles of pacifiism, and whether they have to be longstanding pacifists or merely opposed to the particular war for which they're drafted--and there's no reason to expect it to be different when it comes to school funding.)




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