Monday, March 06, 2006

It's Constitutional Because It's Constitutional, See?

The Supreme Court ruled unanimously that colleges must allow military recruiters on campus to recruit (if they want the federal funds, that is).

The court rejected the free speech (free association) challenge.

Until the underlying legal fiction that don't-ask-don't-tell is non-discriminatory or that discriminating against gays in the military is non-discriminatory. Based on that foundation, on what grounds can law schools exclude recruiters when, by definition - by the court's definition the recruiters are not discriminating and thus cannot be violating the schools' policy.

It's easy to tie federal funding to an unconstitutional policy if you simply refuse to recognize it as unconstitutional, right?

4 comments:

jvgordon said...

But CD, the constitutionality of the military's policy was not at issue in this case.

The issue was really the breadth of the Spending power. And the federal government's spending power is barely constrained by anything except the positive restrictions on federal government behavior in the Bill of Rights and elsewhere. Of course Congress has the ability to not fund colleges who do not comply with the law - the colleges have no right to those funds, and Congress may do with the funds as it sees fit. That's the issue in the Solomon Amendment case, not the underlying policy of Don't Ask, Don't Tell.

cd said...

But nothing. I know what the case was about. But if you look at what the underlying controversy - the entire point of the law schools protesting the presence of recruiters - it is about the policy, not congressional spending power or federalism or any of that crap.

Law schools say: military recruiters, by working for a part of government that says don't ask, don't tell, represent a disciminatory policy and therefore violate our policy to exclude from campus non EOEs.
Congress says: it's wartime, you unpatriotic bastards, and we don't protect gays at that level yet, so here, we'll just take that funding until you behave.

hence: the current case.

but law schools, above perhaps anyone else, should be able to understand that the legal fiction here means they will lose on any number of challenges, as I explained in the post.

so for the schools to really win, someone needs to win the battle to nix don't ask, don't tell or the rest of this is doomed to failure.

jbl said...

On a tangent, NPR reported (I haven't read the case) that the court said that Congress could have gone further. Since Congress has the constitutional authority to raise an army, they could actually mandate that schools have recruiters on campus.

Let's hope they don't go there.

jvgordon said...

CD, I may have underread into your post, as I see that you did sort of make the same point about the DADT policy not being the central issue in the case itself.

Your comment did suggest something interesting, however, which is that in some sense the conflict is about a battle between a constitutional power (the Spending power) which I would guess most people don't care much about, and a principle not protected by federal law but which is dearly held by many people (equal opportunity employment on the basis of sexual orientation is protected by many states, but not under the 1964 Civil Rights Act, as amended, and Lawrence does not cover this kind of issue). From a legal perspective, this is a battle that the Constitutional provision will win just about every time.

Politically, it's surprising to me that the underlying policy of DADT and the lack of EOE protections for orientation haven't been changed, since the intensity of the issue suggests a public choice resolution in favor of protection for sexual orientation discrimination. Is the opposition's intensity really strong enough to prevent those legislative changes from occurring in the near term? Possibly, but legislative change seems like an easier avenue here than litigation, or the strange variant of civil disobedience that universities effectively chose.