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Solomon Amendment - Fair V. Rumsfeld

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The issue here is (in my own words, please correct me if I'm wrong) that the government can grant or withhold funding given to a school based on whether or not their recruiters are given equal assistance/access/etc. The schools hold that they should not be forced to provide assistance to recruiters who openly discriminate against specific groups, thus violating their First Amendment rights.

Would anyone care to try and establish the Objectivist standpoint & arguments with regards to this case? I don't think I have a sufficient command of either Objectivism or the law to answer the question. However, my sister is co-counsel for FAIR so it's a topic of discussion that I'm faced with. If someone could at least provide a basis for the Objectivist argument I could do my best with it from there.

Thanks,

Rob

From www.solomonresponse.org

In 1995, Congress passed the first Solomon Amendment, denying schools that barred military recruiters from campus any funds from the Department of Defense. The next year, Congress extended the law’s reach to include funds from the Departments of Education, Labor, and Health & Human Services. In 1999, legislation shepherded by Rep. Barney Frank removed financial aid funds from the federal monies potentially affected by the Solomon Amendment. Defense Department regulations proposed in 2000 and formally adopted in 2002 exponentially toughened the law by interpreting it to require revocation of federal grants to an entire university if only one of the university’s subdivisions (its law school, for example) runs afoul of the law. In 2005, Congress amended the law to explicitly state that military recruiters must be given equal access to that provided other recruiters.

"To comply with the Solomon Amendment, the law schools must affirmatively assist military recruiters in the same manner they assist other recruiters, which means they must propagate, accommodate, and subsidize the military’s message. In so doing, the Solomon Amendment conditions funding on a basis that violates the law schools’ First Amendment rights."

The members of FAIR are law schools and faculties who practice their message of justice and equality by refusing to facilitate employment discrimination against their students, including their students who are LGBT. FAIR contends that the Solomon Amendment violates the First Amendment rights of its members by conditioning federal funds to universities on its members’ support of military recruitment on campus — recruitment that blatantly excludes openly gay, lesbian and bisexual law students.

http://www.law.georgetown.edu/solomon/docu...s/briefFAIR.pdf

http://www.law.georgetown.edu/solomon/documents/CA3Brief.pdf

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The Objectivist stance is that they shouldn't be recieving public money in the first place. However, since they do, I think that they need to comply with the laws and the Constitution.

If the people (the so-called "owners", or financial supporters, of the public institutions) want the military to be allowed to recruit, as their representatives say they do, then they should be allowed to recruit.

Edited by Captain Nate
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So in essence, the institutions agreed to accept the money, therefore they have to abide by the terms of the money (the Solomon Amendment). If they want the money, then they must allow the recruiting.

The schools have an anti-discrimination policy. The military openly discriminates. The schools therefore consider being "forced" to give equal access to the military as violating their First Amendment freedoms - the right to be free from compelled speech; the right to speak; and the freedom to associate.

The obvious contradiction here is that the schools are _NOT_ being forced to do any such thing. They don't _HAVE_ to accept the money in the first place.

It seems that there's a false sense of entitlement on the school's part that somehow establishes a "right" to the public money, based on the assumption that funding such institutions is the proper role of government.

This is a classic case of the school's wanting to have their cake and eat it too. Discrimination really has nothing to do with it. They simply want the money, and they want it on their terms.

Does that summarize the issue? Am I off-base at all?

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So in essence, the institutions agreed to accept the money, therefore they have to abide by the terms of the money (the Solomon Amendment). If they want the money, then they must allow the recruiting.

Yes. And frankly, I'm disappointed that any American institution would disallow military recruiters to operate on their campus.

Does that summarize the issue? Am I off-base at all?

Yup. I think so.

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I didn't read the technical stuff, but it just seems to me that any free speech nonsense in this case is a complete red herring. The First Amendment guarantees the right of free expression (though not an absolute one), which means that law schools can denounce the military all they want. These law school profs are apparently trying to restrict the free expression of the military -- i.e. they can't come recruit on campus, and try to persuade people to work for the military. What FAIR is apparently demanding is not that they be allowed to express their opinions, but that opinions contrary to theirs be prohibited -- that's a very nice (i.e. sick) inversion of the whole "free speech" idea. What many of them fail to recognise is that as arms of the government themselves (in many instances, viz. in government-run schools), they are unconstitutionally suppressing the right of free speech and association of their own students, in excluding military recruiters from speaking to their students.

Imagine a school which taught Nazism as their basic moral creed, and advocated killing all Jews, blacks and gays. To deprive that school of their 'just economic entitlement' to the federal pie would be, by this same twisted reasoning, a violation of the 1st Amendment. Would FAIR equally demand that federal funds be given to Nazi U? I hardly think so.

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The issue here is [...] that the government can grant or withhold funding given to a school based on whether or not their recruiters are given equal assistance/access/etc. [...]

Would anyone care to try and establish the Objectivist standpoint & arguments with regards to this case?

To set a context for this issue, some points should be explicit:

Objectivism is the philosophy which Ayn Rand created.

As a philosophy, Objectivism takes no position on any particular legal issue. Ayn Rand cannot now take a personal position on this particular issue because she is no longer alive.

To completely settle a particular legal issue would require having a clear legal foundation, but unfortunately no objective philosophy of law has been written.

Last, this mess dealing with military recruiters in governmental schools is a mess created by statism. In a free, capitalist republic, there would be no system of governmental education -- no "public" schools, no school taxes, and no subsidies for any school. There would be only private schools -- for-profit and not-for-profit -- and whatever training the government needed to do for its own purpose of defending individual rights from aggression and fraud. In other words, this issue wouldn't even come up in a proper political system, one that is part of the philosophy of Objectivism.

So, my conclusion is that there is no "Objectivist position" on this statist controversy, though there are certainly views held by individual Objectivists who have varying levels of knowledge of law as it is and as it should be.

Edited by BurgessLau
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  • 1 month later...

Of course government money should not be going to universities in the first place. However, if one takes the democratic principle as a valid one, then one has to assume that the government has the right to take money, spend it, and put restrictions on that spending, as long as:

  • The government is doing this under due process of law
  • The law is constitutional

If the military discriminates in a way that is unconstitutional, then that should be the focus of any legal challenge. If the courts hold that the military discriminates in a way that is illegal, then it's a bigger issue than just not being allowed on campus.

Indeed, to play devil's advocate, why shouldn't the government sue the schools instead. After all, as publicly-funded institutions, they should not be allowed to discriminate among recruiters except on some basis under law. Their personal discrimination should not be allowed at all. Their every decision should be guided by democratic law. These professors can do what they want in their spare time, but when they are at work, they are "public servants" and must act on the legitimate command of government.

No, that's not the way things really are. The real situation is that there is no principled way to solve a situation that is unprincipled at root. So, instead, I just hope it is decided against the peaceniks.

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Of course government money should not be going to universities in the first place. However, if one takes the democratic principle as a valid one, then one has to assume that the government has the right to take money, spend it, and put restrictions on that spending, as long as:

  • The government is doing this under due process of law
  • The law is constitutional

If the military discriminates in a way that is unconstitutional, then that should be the focus of any legal challenge. If the courts hold that the military discriminates in a way that is illegal, then it's a bigger issue than just not being allowed on campus.

Clearly, the government should not be funding universities, yet they are, so now we need to make the best of it. It's not clear to me that the governments right to spend money for and impose objectively justified restrictions on recipients has to do with democracy, but if you're saying that the government has the right to spend money on what it is supposed to do and has the right to put limits on what recipients of such money can do, then I agree. As far as the due process issue is concerned, that's clearly not at issue. Then the question is whether it is constitutional for the government to require recipients of government money to allow military recruiters to recruit on campus. Not only is that clearly constitutional, it would be unconstitutional (a violation of the First Amendment) at least for a government school to bar military recruiters, especially when such a bar stems from expressing (on the most oblique fashion imaginable!) a disfavored point of view. But even if the military discriminates illegally, the law in question has nothing to do with whether the military discriminates. Rather, it has to do with whether the military can have the same access to the marketplace as other professions, to speak to potential employees in order to persuade them to work for the military. What these law schools are saying is that some ideas (working for the military) are so loathsome as to be beyond rank racism or Nazism, ideas which are constitutionally protected so that despite being appalling ideas, their recruiters cannot be excluded from such public expressions.

If the federal law (10 USC 654) which mandates separation from the armed forces if a person engages in homosexual sexual conduct or states that they are homosexual or bisexual is found to be unconstitutional, that would be a separate matter -- it would certainly be appropriate and morally just, but I don't see the legal basis for arguing that it is unconstitutional (then again, a lot of arguments about constitutionality don't have a lot to do with The Constitution).

If the law required the law schools to admit military recruiters without critical comment, that too would violate the First Amendment. What this suit does is utterly pervert the concept of "free speech" to mean "doing whatever you want". So the government is saying, here is an act that you cannot do, namely, bar our military recruiters and also receive federal funds. And they are claiming that this prohibition is a form of "restricting speech". About 1 microsecond of analysis will reveal that this same "logic" leads to the general conclusion that the federal government ccannot place any restrictions on funds that it disburses.

It's pretty popular for the government to fund lots of stuff, creating funding-junkies, and then pass a law that basically gives the government basically unconstitutional oversight over state and local matters -- that's how come we had federally mandated freeway speeds and why we have the No Child Left Alone law. I think Congress's policy on gays in the military is stupid, but that policy really has little to do with this case, except that it is the pretext. The real issue is, should Congress have the power to impose conditions on what recipients of federal largess can do? Like, if Congress votes to give you a million dollars to supply widgets, are they restricting your freedom of speech if you declare that you are opposed to widgets and cannot in good conscience supply them?

I think there is a clear resolution to the case. This suit should be dismissed; Congress should repeal 10 USC 654; the government should limit its spending to the proper functions of government. It would be best of all three things happen, but having any one of them realized would also be good.

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[Posted in the SCOTUS cases thread]

Rob and others interested:

According to the online schedule, C-Span2 will be broadcasting the audio of the FAIR oral arguments tonight (Tuesday) at 10:33p EST, and again at 4:08a EST Wednesday. The arguments will be followed by some brief press stuff outside the court. (Rob, maybe you'll see your sis on TV!) I have no idea if/when this might be broadcast again, nor whether it will be available on C-Span's website, though I imagine it would.

This stuff being available on TV and internet and so soon, is, to quote Peter Griffin, "freakin' sweet." What fun it would be if the Court ever allows video.

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Thanks Matt! I was planning on firing up the TiVo to get this tonight. Also, my sister was interviewed by Dan Abroms on MSNBC today, and that's being replayed from 4-5 AM Eastern tomorrow (she's on at about 35 past the hour, or so I'm told).

Here's the audio from the case for anyone interested: http://wid.ap.org/audio/scotus/051206rumsfeld.rm

I haven't had a chance to watch/listen to anything yet. I also haven't had a chance to respond to the great discussion here. Thanks everyone for your input.

Unfortunaltely for my sister, it looks like the court will be ruling in favor of the Solomon Amendment, but it's good stuff anyway! She's been pretty excited to get to go before the Supreme Court.

Too bad I disagree with what she fights for 99 times out of 100...all that wasted talent. :D

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My pleasure, Rob.

Gen. Clement just made an interesting argument in response to Scalia's question. The response was that the statute is constitutional under the Art. I (Sec. 3, cl. 12) power to raise and support armies, but that they were arguing the Spending Clause issue because they thought it was an easier case that way.

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  • 2 months later...

An update: This case was decided today. In favor of the military. The colleges that wanted to keep military recruiters out lost.

Edited to add: According to initial commentary, the reasoning used by the court did not consider the government funding of colleges. Instead, the reasoning was based on the government's role in raising an army. The implication is that private schools can also be forced to give access to military recruiters.

Edited by softwareNerd
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