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May the federal government deny funds to universities that ban military recruiters from campus? That’s the issue the Supreme Court began considering this week in Rumsfeld v. FAIR, which challenges the constitutionality of the ”Solomon Amendment.” While gay-rights groups are strongly backing the universities, it’s not a simple question of ”pro-gay” vs. ”anti-gay.” The case implicates gay rights only because it involves a larger phenomenon: the federal government throwing around its enormous economic weight to curtail the exercise of individual rights and federalism.
The Solomon Amendment denies almost all federal funds to any university that forbids military recruiting in its facilities. An entire university loses this funding even if only a ”subelement” within the university (e.g., a university’s law school) denies access.
The law runs afoul of many universities’ non-discrimination policies. The military bans service by openly gay personnel. Thus, many universities would like to prohibit military recruiting on their campuses, just as they exclude other employers that discriminate for reasons they believe are invidious.
At the same time, as a practical matter, universities can’t afford to lose federal funding. The Solomon Amendment puts at risk more than $35 billion annually for, among other things, critical university-based scientific and medical research. For some schools, it amounts to as much as 20 percent of their budgets.
The constitutional argument against the Solomon Amendment entails two steps. First, do the schools have a constitutional right to exclude military recruiters? Second, assuming they do, is it violated when the federal government threatens to withhold funds if they exercise it?
The schools, backed by gay-rights groups, claim that excluding military recruiters is part of their First Amendment freedom of association. This claim rests heavily on a 2000 decision, Boy Scouts v. Dale, in which the Supreme Court held that the Boy Scouts had a constitutional right to exclude a gay scoutmaster despite a state anti-discrimination law requiring that he be admitted.
Here is where some irony begins. When Dale was decided, most gay-rights activists denounced it as ”anti-gay.” Yet it is the very freedom recognized in Dale that they now invoke. Thus, a decision defending the right to exclude gays is now being used to defend the right to exclude those who exclude gays. At the same time, some conservatives who hailed Dale as a great victory for freedom five years ago are now arguing for a crabbed interpretation of it.
If the Supreme Court is serious about associational and speech rights, the schools should win on the first question. The government could not mandate that universities allow military recruiters to use their facilities.
But can the government deny them funds when they don’t provide access to military recruiters? That’s the second and much harder question.
Generally, the federal government can tell the states or private entities how to use specific grants they receive. For example, it can require that education funds be spent on education, not road projects.
However, the government generally may not condition the receipt of a government benefit on the relinquishment of an unrelated constitutional right. For example, it cannot give food stamps only to people who agree not to criticize the war in Iraq. This is called the ”unconstitutional conditions” doctrine.
The Solomon Amendment is closer to an unconstitutional condition than to a constitutional limit on the use of funds. It attempts a sweeping denial of almost all federal assistance to an entire educational institution merely because one part of it — a part that might itself receive no federal money — refuses to allow the military to recruit on campus. The condition (the university must allow on-campus military recruitment) and the purpose for which the conditioned funds are spent (say, for cancer research) are unrelated.
If that’s right, however, it might call into question the government’s power to deny federal funds to universities that discriminate on the basis of race or sex, a funding condition the Supreme Court has approved. Perhaps a principled distinction can be made between the military-recruiting condition and the anti-discrimination condition. The anti-discrimination condition directly relates to all aspects of life, including research and employment, in every university that receives federal funds; the military-recruiting condition does not relate directly to, say, a study on improving soybean production.
But my guess is that the justices will not even try to make the distinction. Conservatives on the Court will probably uphold the Solomon Amendment because it involves the claimed needs of the military; liberals and moderates on the Court may uphold it because they don’t want to undermine federal power.
Meanwhile, few seem to have noticed the real issue. Federal power nowadays is not exercised primarily through the threat of criminal punishment. In an age where its budget reaches the trillion-dollar mark, federal power is now exerted most effectively through the conditions attached to that spending. Such economic might has a decisive effect in both the marketplace of goods and in the marketplace of ideas and other freedoms.
The federal government thus ”buys” what it could not directly regulate. The result is the same: less freedom and diversity. In this case, every major educational institution in the country has been cowed on an important matter of principle. The states, too, can be brought to heel by such conditions.
Gay rights are at stake in this case not because one side is necessarily ”anti-gay,” but because the future of freedom in the age of the federal behemoth is itself at stake.
Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.
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