Yer tax dollars at work: NY Times - Mercedes-Benz Forum

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post #1 of 7 (permalink) Old 03-06-2006, 04:48 PM Thread Starter
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Yer tax dollars at work: NY Times

Take my money? Here are the strings attached to my money.

Don't like my strings? Don't take my money.

Is it that hard to understand?



Supreme Court Upholds Law on College Military Recruiting

WASHINGTON, March 6 — The Supreme Court upheld a law today that cuts federal funding from universities that do not give military recruiters the same access to students that other potential employers receive.

The court ruled that the law does not violate the free-speech rights of universities that object to the military's exclusion of gay men and lesbians who are open about their sexual orientation.

The opinion by Chief Justice John G. Roberts Jr. was unanimous.

It was a setback, although hardly an unexpected one, to a coalition of law schools that brought the constitutional challenge, as well as to the Association of American Law Schools, which represents nearly all accredited law schools and since 1991 has required adherence to a nondiscrimination policy on sexual orientation as a condition of membership.

Many law schools initially chose to comply with by barring military recruiters completely or by taking such steps as refusing to help the recruiters schedule appointments or relegating them to less favorable locations for meeting with students.

Congress responded with a series of increasingly punitive measures, all known as the Solomon Amendment, culminating in the 2004 statute at issue in the case. It requires access for military recruiters "that is at least equal in quality and scope" to access for other employers, on pain of forfeiting grants to the entire university from eight federal agencies, including the Departments of Defense, Education, and Health and Human Services.

With hundreds of millions of dollars potentially at stake, all but a handful of law schools yielded. Nearly three dozen banded together as the Forum for Academic and Institutional Rights, with the acronym FAIR, and turned to the courts.

Carl C. Monk, executive director of the Association of American Law Schools, said in an interview today that the association would continue to require its member schools to engage in "significant" activities to counter the impact of the Solomon Amendment, including organizing faculty forums.

The plaintiffs had persuaded the federal appeals court, in Philadelphia, that the Solomon Amendment imposed an "unconstitutional condition" on the universities' receipt of federal money by requiring them to surrender their First Amendment rights and become involuntary carriers of the government's message against gay men and lesbians in the military.

But Chief Justice Roberts said today that the plaintiffs' theory of the case, as well as the opinion by the United States Court of Appeals for the Third Circuit, was based on a fundamental misperception about what it was that the Solomon Amendment was imposing.

"As a general matter, the Solomon Amendment regulates conduct, not speech," the chief justice said. "It affects what law schools must do — afford equal access to military recruiters — not what they may or may not say."

Noting that the law schools remained free to disavow the military's policy, to denounce it or even to help students organize protests, Chief Justice Roberts said that "the Solomon Amendment neither limits what law schools may say nor requires them to say anything."

Citing a 1990 Supreme Court decision that upheld an equal-access requirement for student religious clubs in high schools, the chief justice continued, "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so." He added, "Surely students have not lost that ability by the time they get to law school."

To the extent that speech is involved when a military recruiter visits a campus, the chief justice said, the speech is "clearly" the government's, not the law school's. He said that placing the incidental assistance that universities must provide to military recruiters on the same level as compelling students to recite the Pledge of Allegiance "trivializes the freedom protected" by a 1943 Supreme Court decision holding that the Pledge may not be required.

While the conclusion that the Solomon Amendment does not directly infringe the law schools' free-speech rights was at the heart of the court's analysis, the opinion included several other important threads.

One was the conclusion that allowing military recruiters on campus was not itself an "inherently expressive" activity. This conclusion permitted Chief Justice Roberts to explain why the case was not governed by a Supreme Court precedent declaring unconstitutional a Florida law that required newspapers to grant "right of reply" or by another precedent allowing the organizers of Boston's St. Patrick's Day parade to exclude a gay pride group despite a nondiscrimination ordinance.

The difference, the chief justice said, was that both the newspaper and the parade organizers in those cases were engaged in expression with which the government could not constitutionally interfere, while law schools "are not speaking when they host interviews and recruiting receptions."

Another conclusion was that the Solomon Amendment does not interfere with another interest protected by the First Amendment, the law schools' freedom of association. The appeals court had found a violation of this freedom by analogy to a Supreme Court decision in 2000 that gave the Boy Scouts the right to exclude a gay scoutmaster despite a New Jersey nondiscrimination law.

The analogy was incorrect, Chief Justice Roberts said. Unlike Boy Scout leaders who become part of the organization, "recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students — not to become members of the school's expressive association," he said, adding: "This distinction is critical."

The court also rejected an alternative theory of the case put forward by groups of professors from Harvard and Columbia Law Schools. Under their theory, the Solomon Amendment's mandate for equal access could be met by a school that simply excluded all employers who did not attest to a nondiscrimination policy. "That is rather clearly not what Congress had in mind," Chief Justice Roberts said, adding that this interpretation of the Solomon Amendment "would render it a largely meaningless exercise."

The constitutional power of Congress to "raise and support armies" was another significant thread in the opinion. Chief Justice Roberts said that in exercising that power, Congress could have directly required universities to admit military recruiters, instead of taking the more indirect approach of making access a condition of federal funding. "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly," he said.

The decision, Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, was announced on a day when, coincidentally, some four dozen uniformed Army lawyers were in the courtroom to be sworn in as members of the Supreme Court bar.

Mr. Monk, the law school association's executive director, said in the interview that law schools retained the obligation to "create a welcoming environment for all their students." He added, "Ultimately, our hope is that gay and lesbian students who want to serve their country by becoming military attorneys will be able to do so."
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post #2 of 7 (permalink) Old 03-06-2006, 05:10 PM
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RE: Yer tax dollars at work: NY Times

I know the left of the left will scream about this and reiterate everything from "Bush stole the election" to "it's all Roberts' fault", but please notice that it was a *unanimous* decision, something that happens pretty rarely with the Supreme Court.[;)]
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post #3 of 7 (permalink) Old 03-06-2006, 05:34 PM
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RE: Yer tax dollars at work: NY Times

I am more upset about the government and there farm subsidies, and the fact that we have enough wheat to make like 5-6 loafs of bread for every man woman and child on the earth. Think about how stupid it is to pay $25 billion a year to farmers not to produce more. but yet in a way it somewhat helps keep the price down when we the consumer buy the farm product but really we end up paying for it in taxes.
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post #4 of 7 (permalink) Old 03-06-2006, 06:33 PM
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RE: Yer tax dollars at work: NY Times

Kind of like biting the hand that feeds, no?
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post #5 of 7 (permalink) Old 03-06-2006, 09:05 PM
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RE: Yer tax dollars at work: NY Times

I'm not sure if I'd want to go to a law school that employs the kind of logic that was necessary to file this lawsuit. Kind of like getting an MBA from a school that can't make money.

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post #6 of 7 (permalink) Old 03-06-2006, 09:35 PM
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RE: Yer tax dollars at work: NY Times

No suprises here, either from the source or the source. Tried and true, black and blue.
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post #7 of 7 (permalink) Old 03-07-2006, 04:56 AM
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RE: Yer tax dollars at work: NY Times

I was glad to see the ruling by the Supreme Court. It was the correct ruling.
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