- The Washington Times - Thursday, December 2, 2004

In a poorly reasoned decision, the 3rd Circuit Court of Appeals has ruled that the government cannot withhold federal funds from colleges and universities that ban military recruiters from their campuses. Because the plaintiffs — a network of law schools and professors — cushioned themselves in First Amendment rhetoric, their defiance of federal law was cast as noble opposition to government coercion, not as academia’s contempt for the military, which it was. The 3rd Circuit’s ruling then not only sets a bad precedent that the Justice Department should immediately appeal; it taints the Constitution with yet another liberal distortion of the First Amendment.

At stake in the case was the 1996 Solomon Amendment, which prohibits federal agencies from funding colleges and universities that ban military recruiters. The law went unenforced until 2001. When the Pentagon threatened to invoke the law, a cadre of law schools and professors immediately filed a complaint, citing a violation of their First Amendment rights. Since the law schools disapprove of the military’s discriminatory policy against gays, they argued, allowing recruiters on campus would go against the university’s message of tolerance. In a 2-1 ruling, the 3rd Circuit agreed.

To buttress their argument, the judges cited the 2000 Supreme Court case of Boy Scouts of America v. Dale. In that case, the court found that the Boy Scouts could not be barred from excluding openly gay Scoutmasters on the grounds that doing so undermined the Scouts’ message. By the 3rd Circuit’s logic, the government was forcing universities “to express a message that is incompatible with their educational objectives.”

Yet the Dale case does not extend to the Solomon Amendment for one critical reason. Excluding a gay Scoutmaster from being a figure of authority is not the same as banning a military recruiter from campus. As the Supreme Court reasoned, “Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and to the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior” — something expressly at odds with the Boy Scouts’ message. Whereas a Scoutmaster is a member of the Boy Scouts, a military recruiter is not a member of the university, nor even in a position of authority while on campus. Students meet with, or ignore, a recruiter voluntarily.

But no one seriously believes that a recruiter’s presence on campus means that the university approves of everything the military does. It is just as absurd to believe that if the military changed its “don’t ask, don’t tell” policy for gays, then law professors the country over would welcome recruiters with open arms. Their faux sense of victimization could be tolerable, however, if it weren’t in service to a shameless grab for a federal handout. And we’re pretty confident that the Constitution does not have a provision guaranteeing the right to federal grants — which is at the crux of the professors’ complaint.w

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