Biting the hand that feeds them

Law schools vs. the federal government

By Mickey Klein
From the February 2006 Print Edition

“No one will stop you from speaking, but that doesn’t mean anyone has to give you a microphone.”

— Ayn Rand

Every year, the federal government doles out billions of dollars in discretionary aid to states and private institutions, both to subsidize public goods and establish national control over areas not addressed in the Constitution, such as education, highways, and drug laws. This money is given with conditions attached, and because these aid bills cannot carry the force of national law, they are only effective if the receiving party voluntarily accepts the money.

Just a few months ago, a representative for law schools around the country stood before the Supreme Court and told the justices with a straight face that the federal government was violating free speech rights by withholding grants to schools that undermine federal programs.

At issue in the Supreme Court was the Solomon Amendment, an act of Congress that regulates discretionary aid to colleges. It states that federal aid will be denied to colleges that hinder military recruitment on campus. The legislative intent was that colleges that receive millions of dollars from the national treasury should not work against critical national programs.

The schools argue that, because of the military’s intolerance of openly homosexual soldiers, they have a right to ban military recruitment from their campuses without losing any federal aid. They allege that the Solomon Amendment’s provision to restrict federal aid if they hinder military recruitment leaves them no choice but to render meaningless their anti-discrimination policies. The schools claim that a loss of funding would be tantamount to the federal government denying them the freedom to express their opinions against prejudice.

What they don’t realize is that the government is already giving them a choice. The government is not denying the school’s right to free speech and association, the government is simply attaching conditions to a grant, something every student aid recipient at this university is familiar with.

American case law has firmly established that private organizations that refuse government aid are free to associate peaceably with whomever they please, even if the association is extremely unpopular and even contrary to national standards of public morality.

Bob Jones University is the classic example. It maintained a ban on interracial dating among students until 2003, contradictory to the conditional clauses of their government education grants. They were stripped of all government aid and tax relief, but in the end there was nothing the government could do about the exclusionary policy. If the university refused to take the money, they could very well remove themselves from all federal regulations, even the ones that are nationally popular. The government, however, has maintained its refusal to grant the school aid to this day because of a plethora of other conditional violations, with strong court backing for both sides.

The trick is that the law schools want to have it both ways. They want to defy the conditions of the grant and get the money at the same time. It’s hard to believe that their argument is that illogical, but it is.

How, then, can so many smart law school professors really argue this with a straight face? The answer is that their concern has absolutely nothing to do with gay soldiers, no matter how real their plight, but rather from objections to foreign policy, especially our involvement in Iraq.

These plaintiffs believe that the American military is the cause of the sorry state of our foreign affairs. Some are radicals so divorced from reality that they simply oppose the act of making war, the same way that some people simply oppose human inequality, but there are many others who honestly believe attacking the institution of the Army is a useful political act toward changing foreign policy.

On the contrary, the military is an apolitical institution tasked to execute the will of the American state by force. The Army is not in Iraq because of an independent action, but because President George W. Bush has decided that our government must continue its military presence in the country — the new Iraqi state, however much elected, is ineffective in the face of the Sunni rebellion and must be supported by our ground troops indefinitely until it can establish security.

It is not unreasonable to be a critic of shedding American blood in a foreign civil war, no matter how noble the intentions; however, that is a civilian, not a military, decision. It was the civilians of Congress who gave the president authorization to go to war and Bush who is personally responsible for commencing Operation Iraqi Freedom.

The Supreme Court should strike down this lawsuit and allow the military to continue doing its job. At the same time, the political debate on the war must continue. Ultimately, it is the elected civilians in charge of the government who must be swayed for the course of our foreign policy to change.

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