We Want Your Money, Not Your Soldiers
Paul Mirengoff over at Powerline provides some interesting discussion about the case of Rumsfeld v. FAIR, wherein various law schools have refused to allow JAG recruiters to come on campus to sign up law students for military service using their law degrees. In response, the feds have cut a portion of their funding to those schools based upon the Solomon Amendment which conditions receipt of a portion of federal funds upon allowing military recruitment at universities. But therein lies the problem.
The law schools that form the group FAIR (Forum for Academic and Institutional Rights), oppose the presence of military recruiters on campus because they believe that permitting them an opportunity to speak to students about a military career violates the school's First Amendment rights not to associate with those with whom they disagree. Specifically, the schools are claiming that the military discriminates against gays and lesbians. More to the point, they argue that in order to receive the funds they want, they are being forced to throw their values out the window, and that the federal government cannot place preconditions to the receipt of funds which would induce the law schools to abandon their leftist convictions.
But this alleged harm (and that's all it is) ignores the greater point that the schools are not required to accept these funds, nor are they entitled to them.
And the Supreme Court has already spoken on the federal government's right to place conditions on the receipt of federal funds.
In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court ruled that Congress could place conditions upon the receipt of federal funds to achieve its objectives. The case states in pertinent part:
The Constitution empowers Congress to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Art. I, 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power "to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." Thus, objectives not thought to be within Article I's "enumerated legislative fields," may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
The spending power is of course not unlimited, but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of "the general welfare." Second, we have required that if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . ., enable[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation." Third, our cases have suggested that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." Finally, we have noted that other constitutional provisions may provide an independent bar to the
conditional grant of federal funds.
The Court's reasoning in upholding the federal power to place conditions on receipt of its funds is pretty clear. And the test to determine the legitimacy of the conditions being placed on the receipt of funds is equally reasonable. Recruitment of military personnel definitely provides for the general welfare. Part of having a functional country is keeping its people and institutions (even leftist law schools) safe and only a strong military that recruits young minds and bodies can do that. The second component regarding the clarity of the precondition is also properly met. There is no question that if on-campus recruiting is not permitted the checks will stop arriving, and the premise of FAIR's suit makes that clear enough. The third component is easily satisfied, since the military is likely the most significant national project in existence. But it's the fourth one where the professors and administrators hang their hats.
They claim that their First Amendment right not to associate (which their leftist ilk opposed previously when they forced unwanted associations with others in the interests of political correctness) is violated because on campus recruiting would somehow constitute an endorsement of the military's policy against service by openly gay people. But I think the Supreme Court will likely have none of it.
To agree with the schools, the Supreme Court would have to accept their viewpoint that the military is an inherently (and illegally) discriminatory organization. And in so doing, the Court would create a precedent whereby a subjective claim of political discomfort could defeat legitimate government objectives. And Mirengoff in a very well written piece notes the inconsistencies in the schools' position insofar as they abhor what they feel to be discrimination against people based upon a lifestyle, yet they are discriminating in their selection of employers who can come on campus.
My thought is that the schools are in a logically inconsistent position. The essence of their argument is that they welcome federal government's money, but not the soldiers that defend it. Remember my argument before that while the left can feign helplessness better than anyone, they are devilishly clever at getting others to pay for their problems. And as I mentioned above, they don't have to take the money, nor are they entitled to it just because the Treasury is writing checks. In a very real sense these leftist administrators are telling the government that while it cannot participate in their employment programs, the schools still have the right to demand that the government contribute to them financially.
It's really rather arrogant when you think about it.