The Great Change: Turning Cathy into a Lawyer

You know...

I admit that its not much of a legal argument on his part-- but I tend to agree with Judge Aldisert's comment.

While the military's policy on gays is pretty tough to justify or defend (and should be changed), I find it somewhat disturbing when federally funded universities (or any American institution) boycotts the military. Law schools should permit the military to come on campus to recruit; and folks who oppose the military's policies should be free to protest in any way they see fit. But to kick the military out of an on-campus rectuiting program just sits on me as wrong-- letting them come strikes me as something akin to a basic civic duty.

Admittedly, not a legal argument, but something that I feel fairly strongly about. Banning military recruiters (especially during a time of war) simply doesn't strike me as a reasonable way to petition for a federal policy change.

Mark

If withholding access to the military puts it in such a bind, the military can change the policy that led to that restriction. It strikes me that stepping up to be that force for positive change is very much a civic duty itself.

Furthermore, requiring the universities to devote their resources to subsidize the military's bigotry demands far more of an institution than the government has any business doing. Especially because resources are finite, and the universities might reasonably want to devote them to opportunities which ALL their students would be welcome to pursue.

Much as I disagree with the military's policy regarding gays, I don't think that the military should be forced to abandon its policy in order to gain access to potential recruits. The military (with congressional oversight), simply has to have control over its own recuiting policies. Its not right for state institutions, or federally subsized educational institutions to block the military's access to recruits because they don't agree with federal policy and want to change federal policy. To do so is dangerous to the national defense and (I have to say) a bit of a dodge of a civic duty. Remember, in order to provide for the common defense, the military can demand a draft-- it seems that requiring schools to let the military make an appearance is a minor burden to which all schools should acquiese. Just like a taxpayer can't refuse to pay taxes because he or she doesn't like how the government spends its money, and just like a citizen can't avoid a draft just because he disagrees with our country's foreign policies, a school shouldn't be able to dodge its duty to let the military recruit.

While you (and I) might agree that the net result of a change in the gays policy would be an increase in military efficiency, ultimately that judgement has to be left to the military (as overseen by congress), since they are the experts on their personel matters.

Folks should feel free to protest the military's appearance at OCI all they want, but schools shouldn't be allowed to block that appearance. The federal government's interest here simply trumps thier rights to try to influence the government's policy.

Mark

They aren't "blocking" the military from talking to the students. They aren't preventing students from pursuing those jobs with it, and the military has plenty of other avenues to recruit for its opportunities.

What the military is demanding is that its access be actively and directly faciliated by the law school, putting the school in a role where it has to expend its own resources in order to do the military's bidding. No party should ever be able to compel another to do anything against its will, military or otherwise. That's what's so onerous about the law.

The govenment compels people to do (or forgo doing) things all the time; via criminal law, regulations, and conditions on government aid.

The military has at time had especially broad powers, including the draft, very substantial immunity from liability, and the ability to cause the deaths of those in our way during military actions (usually foreigners).

How is this relatively small compulsion, placed upon institutions that accept federal aid and provide public services, so much more offensive than government's other demands. Especially at a time when it is well recognized that the military is having problems recruiting enough volunteers to meet our national security needs (even national security needs caused by a really really stupid war).

Legally, there may be a free speech argument of some sorts, but as a strict matter of fairness and perspective, I think this one strongly leans towards the military.

Mark

Also, remember, it was not so long ago (the '60s) that all male undergraduates were required to participate in ROTC as a condition of attending a land grant university.

Thankfully, that has ended. But on campus recruitment seems like a substitute for that very stringent national defense requirement.

Mark

I don't have the time to say much more than I've already said, but I really don't think your analysis changes mine. It sounds very much like you are acknowledging that the policy is bad, but because the military has had worse policies, and this is what you deem but a minor imposition, and let's not forget the government gets to impose a lot of other things too, that we should just shut up about this one. True the government can impose a lot of other things but it can't impose just anything. Some impositions are legitimate, some not. This one is in the latter category. Furthermore I don't buy into the "count your blessings, it could be worse" rationalization. If it's bad enough (and it is) that justifies railing against it.

I wasn't actually saying, count your blessings, it could be worse. What I was saying is that sacrifices must be made by individuals and institutions in the name in national defense, and certainly permitting the military on campus to recruit is a small burden towards the common good. All the military asks is that it be permitted a slot in job fairs and oci programs that are already being set up. My understanding (I could be wrong) is that the military even pays the same registration fees as other public employers. Thus, the expense of the burden to the schools is exceedingly minor, and I feel that the government is quite right to demand that schools bear this burden.

Mark

Incidentially, I don't think its correct to characterize my views as "acknowledging that the policy is bad."

I do feel that the military's policy on gays in the military is bad.

I do not, however, feel that the government's policy of requiring that schools allow in military recruiters is bad. Furthermore, I feel that this is something that schools should be doing willingly and without protest.

I don't see these two issues as being linked, except in the sense that schools want to disoby (or have overturned)the second policy as a means of protesting the first.

There are some things that we just have to do, as citizens, to support the defense of our country. In my mind, one of these things is permitting the military to recruit in the ways it deems most effective. Even if we disagree with the military, we still need it to exist and to be staffed, and there are plenty of other means for influencing federal policy that do not interrupt the critical govenmental function of staffing the military.

Are you two still arguing about this? *sigh*

Anyway, I've got another story, antiquated as it is, although you will have to forgive my lack of knowledge about the law.

I also happen to come from a university in the Boston area (which I will decline to name, although Cathy could probably see it from her window) - one that used to get oodles of money from Defense research projects when that was in vogue, and probably gets a lot of them now because of recent events. Now for years, I remember that they had a problem with ROTC policy, since that conflicted with the university policy of no discrimination based on, among other things, sexual orientation. (If you want, you can go look at past course bulletins, and look at the text in the first few pages referring to this.)

Now the university did allow the military to recruit on campus, but suppose there was a law that denied federal funding for campuses that didn't allow ROTC... which might seem silly, but it's not that different from the Solomon amendment, as ROTC is a great way to recruit people, and given the intelligence of people at my university in particular, the military would want people from there. But if the university really wants to uphold the policy on non-discrimination, what are you supposed to do?

The crux of the problem here is probably tying it all to federal funding, which is probably the reason why it was declared unconstitutional (duh to you guys, but this is me...)

And why wouldn't you want to treat this as an academic exercise? Aldisert should be sacked. If a law is unconstitutional, it needs to be struck, whatever other factors in reality might say. If you need to accomplish something that was a side effect of the law, figure out another way. That a judge in such a powerful position thinks that the constitution can be ignored to serve the military disturbs me.

Koichi...

Personally, my answer to your hypothetical would be that if the unnamed university really felt that permitting ROTC on campus was antithetical to its core values, then it could always choose to decline federal funding (and therefore be able to resist ROTC).

Admittedly, this is a very unattractive option for the university. On the other hand, it is equally unattractive to the military to give funding to a university and then be treated like a lepper.

By the way, I did read the Solomon Amdt opinion (I hadn't when I wrote my prior messages, the contents of which I continue to stand by). The core issue in the challenge was based on the principal that the federal government can not, as a condition of providing funding, limit the free speech of a funding recipient by either forcing it to speek in a specific manner or gaging it from some form of protected expression. This is an important constitutional principal, because without such a principal, the government would be able to condition federal funding on not critisizing the government.

However, in broad strokes, I don't see how that principal applies here. I don't believe that the Solomon Amdt implicates speech. It requires that recipients provide access to government employees for a specific purpose, but does not compel the recipient to express anything.

So long as the schools, and their students, are permitted to make public statements protesting the military's hiring policies, I see no problem with requiring (as a funding condition), that schools permit the military to participate in the school's recruitment programs. In my book this requirmenet just doesn't impact free speech in a meaningful way, and this is a reasonable "string" for the government to attach to its funding for an educational institution.

Now, to the extent (and only to the extent) that the Solomon Amdt gags a school from stating that it is permitting the military on campus only under duress, I have an issue with the constitutionality of the Solomon Amdt. But if the school is free to make as many statements of objection as it wants, and to publisize its opinion as much as it wants, then I have no problem with the government's requirmeent of access for recruiters. A school that doesn't want to permit such access can always choose to not take funding.

BTW... For an interesting take on this issue (and I don't entirely agree with everything said there), see this link:

http://www.law.georgetown.edu/solomon/Documents/AmicusUCLAWVets24Feb04.pdf

Also, a trove of information is included here:

http://www.law.georgetown.edu/solomon/

Not that the latter site pretty strongly disagrees with my opinion, but provides a wealth of inofmration.

Mark

Incidentially, the quote of the Judge is actually of language that appears in his dissent.

Just noticed a pretty bad typo in my last long messages...

It should have said "note that the latter pretty strongly disagrees with my opinion"

not

"not that the latter pretty strongly disagrees with my opinion."

Editorially, the georgwtown site is strongly opposed to the legallity of the amendment.

Mark

Decision came down today

http://a257.g.akamaitech.net/7/257/2422/06Mar20061300/www.supremecourtus.gov/opinions/05pdf/04-1152.pdf