Military Recruiting Restrictions
By Denise Best | Related entries in In The News, Military, Supreme CourtWhat’s amazing in the decision by the Third Court of Appeals that it is unconstitutional for the federal government to condition its funding to universities on military recruiters being afforded equal access to students, is not so much the restriction itself (although arguably questionable in its application), but the basis upon which was cited.
Although recognizing the general right of the government to condition its funding, the Court of Appeals struck down the Solomon Amendment on the ground that it violates the universities’ academic freedom not to appear to endorse the military’s “Don’t Ask Don’t Tell” policy regarding gays in the military.
An appeal to this ruling will be presented to the Supreme Court tomorrow when it will hear arguments in Fair v. Rumsfeld.
The case arises out of an attack on the Solomon Amendment, enacted by Congress in 1994 and signed into law by President Clinton, which mandates that federal funds be withheld from any university in which any part (for example, a law school) denies military recruiters that access.
Geez, this stance would seem to stand in direct contradiction to the academic freedom so often touted as part and parcel within such institutions.
Guess law schools are seeking to be more selective in the service (partial pun intended) and opportunities they provide their students.
This entry was posted on Monday, December 5th, 2005 and is filed under In The News, Military, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
December 5th, 2005 at 6:17 pm
I don’t know the legalities, and I agree that the military is wrong on gays, but the idea that campuses would prohibit military recruiting in a time of war — whatever you think of the war — is repugnant.
Every one of these campuses, I guarantee you has groups which are essentially Communist, handing out flyers, selling books and holding meetings. As I recall there were just a few moral issues with the Communists, too. How is it they make the cut and the US Army does not?
December 6th, 2005 at 12:29 am
As one who worked for the Air Force JAG Corp, I think this opinion is an unfortunate constitutional joke and will be overturned by the Supreme Court.
There is something in this opinion to show, other than bad law produced by result-bent judicial philosophizing and that is the utter hypocracy of the judical and legal left. As President of the Federalist Society, the university of the law school that I attended, tried to force me to put a homosexual anti-discrimation clause in our student constitution.
The Federalist Society, neither at the national or at any student chapters that I know of, discriminates against homosexuals. In fact, I’m sure that a significant number of homosexuals are in the Federalist Society. I put in our constitution that the Student Chapter of the Federalist Society was fully committed to the constitutional mandates of Boy Scouts v. Dale. They, the student government, said — “Way to get in line” and “recognized” the Federalist Society. This is ironic, to me anyway, because FAIR relies heavily on Dale in its Expressive Association analysis.
First of all, the longer the opinion generally the worse the precedent, the worse the law. The 3rd Circuit really constrained itself to 102 pages. Have fun with parsing out all the little tidbits in this one.
FAIR based its argument on the uncostitutional “conditions” doctrine of First Amendment analysis, which says, “the Government ‘may not deny a benefit to a person on a basis that infringes his constiutionally protected interests-especially, his interest in freedom of speech.”
Well, that is great! That means neither can public universities or public law schools. The Christian Legal Society and the Federalist Society just became much stronger on law school campuses. And both organizations should invite the armed services on campus and have JAG week. God Bless the Doctrine of Unforseen Constitutional Consequences. Or perhaps forseen.
Please, if someone can explain to me how the door can not or does not swing both ways, please come forth.
December 6th, 2005 at 5:28 pm
Speaking of the door swinging both ways, if the justices of the Third Circuit think the Solomon Amendment violates the academic freedom of the universities, I wonder how they feel about Title IX, which is much more invasive of academic freedom?
The government invades “academic freedom” all the time by conditioning its funding upon certain behavior of universities. This ruling makes no sense.
December 6th, 2005 at 11:16 pm
I heard on NPR today a discription of the oral arguments. Apparently, the Justices were not very receptive of FAIR’s argument. Even Bier apparently chimed in in defense of the military.
March 10th, 2006 at 5:09 am
Hi There I found your blogg when doing a search, not what I was after but hello anyway :-)