Rumsfeld v. FAIR
Nov. 29th, 2005 06:25 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumThis is an interesting case (and one which has no connection to the Alito nomination).
The case is about the Solomon Amendment, which removes federal funding from schools which make it difficult for military recruiters to speak with students.![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
iocaste has a good wrap up of the general issues, here.
To sum up a group of law schools decided to refuse access to their campuses to the DoD because the DoD has discriminatory policies (specifically they don't allow homosexuals to take part in the military).
Now, the law schools didn't completely sever access, they just restricted it, limiting it to leaving literature and cards, but not direct access to students. The issue lay fallow until after 2001. After that the DoD decided this was a big deal.
There are a lot of issues here. The first is that the access to colleges seems to be something in which the Gov't has an interest (whether this interest is compelling is a differnent question, and part of what may be answered when the Court hears the case). Another is whether such limits to federal funding are valid. Can a school fight Title IX because it doesn't like it? If Solomon is struck down in toto, then such a conclusion might be justified. Certainly there is the possibilty for challenge.
Those who are against Title IX wouldn't be so happy if the same argument were used to stop the conditional federal funding of clinics which give advice on birth control which discusses abortion, which might be done on the same grounds Title IX could be challenged.
But, and this may be the narrow way the court elects to walk, there is the issue of equal access. The colleges, as Harvard points out in it's amicus brief, the schools didn't place a specific exclusion on the DoD, they merely held them to the same standard they held any other prospective employer.
As,Docuticker,says, "Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the 'Don't Ask, Don't Tell' policy, which allows the military to exclude or discharge any member who 'engages in a homosexual act' or 'states that he or she is a homosexual.' Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment. Under the present version of the Solomon Amendment, federal funding is withheld from any 'institution of higher education' or 'subelement' (i.e., law school) that has a 'policy or practice' that 'either prohibits, or in effect prevents' military recruiters access to students 'equal in quality and scope to that provided to other recruiters.'
Harvard goes on to say, In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege--one shared by no other employer, including other agencies of the Federal Government--to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute--one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties' briefs. Consistent with the statute's text, its history, and the government's own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy--no matter how evenhanded--that they deem burdensome to their recruiting efforts.
So, an evenhanded use of the non-discrimination policies isn't actually discriminating against the Army, it is rather a libertarian answer; in that the society (law schools) is demanding the gov't anwer to their wishes, and doing so with what might be termed a market incentive. When the military provides what they demand (equal service for homosexuals) they will give the military what they want (unfettered access to students).
That argument, is probably the best (both in practical terms, and in terms of legal disputation) for the policies the law schools are following. It also is the best way to thread the needle between the removal of gov't interest in such incentives as affecting Title IX and other such civil rights issues; which includes such things as the discussion of abortion, where federal funds are involved.
The case is about the Solomon Amendment, which removes federal funding from schools which make it difficult for military recruiters to speak with students.
iocaste has a good wrap up of the general issues, here.To sum up a group of law schools decided to refuse access to their campuses to the DoD because the DoD has discriminatory policies (specifically they don't allow homosexuals to take part in the military).
Now, the law schools didn't completely sever access, they just restricted it, limiting it to leaving literature and cards, but not direct access to students. The issue lay fallow until after 2001. After that the DoD decided this was a big deal.
There are a lot of issues here. The first is that the access to colleges seems to be something in which the Gov't has an interest (whether this interest is compelling is a differnent question, and part of what may be answered when the Court hears the case). Another is whether such limits to federal funding are valid. Can a school fight Title IX because it doesn't like it? If Solomon is struck down in toto, then such a conclusion might be justified. Certainly there is the possibilty for challenge.
Those who are against Title IX wouldn't be so happy if the same argument were used to stop the conditional federal funding of clinics which give advice on birth control which discusses abortion, which might be done on the same grounds Title IX could be challenged.
But, and this may be the narrow way the court elects to walk, there is the issue of equal access. The colleges, as Harvard points out in it's amicus brief, the schools didn't place a specific exclusion on the DoD, they merely held them to the same standard they held any other prospective employer.
As,Docuticker,says, "Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the 'Don't Ask, Don't Tell' policy, which allows the military to exclude or discharge any member who 'engages in a homosexual act' or 'states that he or she is a homosexual.' Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment. Under the present version of the Solomon Amendment, federal funding is withheld from any 'institution of higher education' or 'subelement' (i.e., law school) that has a 'policy or practice' that 'either prohibits, or in effect prevents' military recruiters access to students 'equal in quality and scope to that provided to other recruiters.'
Harvard goes on to say, In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege--one shared by no other employer, including other agencies of the Federal Government--to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute--one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties' briefs. Consistent with the statute's text, its history, and the government's own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy--no matter how evenhanded--that they deem burdensome to their recruiting efforts.
So, an evenhanded use of the non-discrimination policies isn't actually discriminating against the Army, it is rather a libertarian answer; in that the society (law schools) is demanding the gov't anwer to their wishes, and doing so with what might be termed a market incentive. When the military provides what they demand (equal service for homosexuals) they will give the military what they want (unfettered access to students).
That argument, is probably the best (both in practical terms, and in terms of legal disputation) for the policies the law schools are following. It also is the best way to thread the needle between the removal of gov't interest in such incentives as affecting Title IX and other such civil rights issues; which includes such things as the discussion of abortion, where federal funds are involved.
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no subject
Date: 2005-11-30 06:00 am (UTC)I may collect my heterodox liberal beliefs at some point and post them as an exercise.
no subject
Date: 2005-11-30 04:12 pm (UTC)Certainly it isn't that I'm against service, but the schools ought to have the right to set standards. The law says they can refuse to allow any recruiter, from any company. They won't do that, because part of a law school's function is to find employment for its graduates, but to hold them all to a standard seems reasonable to me.
Then again, I have some heterodox beliefs too, which have gotten me abuse from the left, right and middle.
TK
no subject
Date: 2005-11-30 12:17 pm (UTC)Can we possibly be so weak admitting there's a few gays in service would kill us?
no subject
Date: 2005-11-30 04:09 pm (UTC)The same arguments were made about blacks, are sort of being made about women. They were false then, they are false now.
Guys at the top (Randy Shilts said that Shwartzkopf had told him this) have said; off the record, that it will happen, the only question is when.
And the issue will come to pass when we get someone with Truman's backbone to make an order from the top. On the downside, because of article 128, it will take some major hassle, because Congress has to get involved to change the UCMJ. That, however, could be forced pretty damned fast if 1: all acts of "sodomy" were prosecuted, and 2: the president refused to sign the change if it still included homosexual acts.
Mind you, doing it that way would be painful for those in the service, (what with every soldier involved in a blowjob being kicked out), but the end result is something we need to do, because they are here. They do good service and (this is the evil part) the army; usually, ignores it when there's a war on, kicking the poor bastards out after they've been shot at for a period of time; thus getting good service, and then maligning the person who served. That's reprehensible.
TK
no subject
Date: 2005-11-30 08:04 pm (UTC)It seems to me that this case will depend on where in the Rust/LSC continum the court places the Solomon Amendment. Certainly law school recruiting is designed to "facilitate private speech." But the government can argue that the case here is closer to _Rust_, where the government is being excluded as a speaker.
The difficulty with the reading you propose is that the Solomon Amendment does not require anything of the recipients. They can voluntarily receive or not receive the money. While this "voluntary" choice is, of course, the basis for the idea of an "unconstitutional condition," it does provide a distinction between the military and a private corporation. A private corporation that discriminates against homosexuals could decide to withdraw funding in response to limited access. The government, according to opponents of the Solomon Amendment, cannot.
To take a somewhat closer analogy. Assume Drug Co., a private company, provides annual donations to School's biology and research labs. in exchange, School does joint work with Drug Co. and allows Drug Co. to actively recruit on campus. Drug Co. then announces a policy of discriminating against homosexuals. School informs Drug Co. it may no longer actviely recruit students. Drug Co. withdraws its donations.
As Drug Co is a private actor, there is no concern of an "unconstitutional condition." But this very fact limits the supposed parity of Harvard's proposed reading of the Somon Amendment. The situations are not comparable, and cannot be comparable, because the government is not a private actor. Accordingly, I suggest, the Solomon Amendment must stand or fall on the basis of the uncostitutional conditions argument, which in turn stands or falls on the basis of the Rust/LSC reading.
no subject
Date: 2005-11-30 08:56 pm (UTC)The question I see is the same one Harvard raises, does the gov't get to say, "we have to get unfettered access, preferential to others (who must abide by the code of the law school) or the money will be rescinded.
The Gov't has made cases where they decided they could change the tax status for those who discriminate. BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983)
In No. 81-3, petitioner Bob Jones University, while permitting unmarried Negroes to enroll as students, denies admission to applicants engaged in an interracial marriage or known to advocate interracial marriage or dating. Because of this admissions policy, the IRS revoked the University's tax-exempt status. After paying a portion of the federal unemployment taxes for a certain taxable year, the University filed a refund action in Federal District Court, and the Government counterclaimed for unpaid taxes for that and other taxable years..."
Held:
Neither petitioner qualifies as a tax-exempt organization under 501(c)(3). Pp. 585-605.
(a) An examination of the IRC's framework and the background of congressional purposes reveals unmistakable evidence that underlying all relevant parts of the IRC is the intent that entitlement to tax exemption depends on meeting certain common-law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy. Thus, to warrant exemption under 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest, and the institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred. Pp. 585-592. ..."
Petitioner Bob Jones University, however, contends that it is not racially discriminatory. It emphasizes that it now allows all races to enroll, subject only to its restrictions on the conduct of all students, including its prohibitions of association between men and women of different races, and of interracial marriage. Although a ban on intermarriage or interracial dating applies to all races, decisions of this Court firmly establish that discrimination on the basis of racial affiliation and association is a form of racial discrimination, see, e. g., Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964); Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973). We therefore find that the IRS properly applied Revenue Ruling 71-447 to Bob Jones University.
So one could argue the law schools are applying a similar standard.
The text of Solomon also makes it plain that the campuses aren't, actually (if you ask me) violating the letter of the law,
(b) DENIAL OF FUNDS FOR PREVENTING FEDERAL MILITARY RECRUITING ON CAMPUS- None of the funds made available in this or any other Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act for any fiscal year may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered educational entity if the Secretary of Defense determines that the covered educational entity has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents--
(1) entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of Federal military recruiting; or
(2) access by military recruiters for purposes of Federal military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at the covered educational entity:
(A) student names, addresses, and telephone listings; and
(B) if known, student ages, levels of education, and majors.
The information is available, and recruiters can come to campus. What they aren't getting is space at the hiring fairs/cattle calls.
TK