May the federal government deny funds to universities that ban
military recruiters from campus? That's the issue placed before the
Supreme Court 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 "sub-element"
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 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 enormous 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" through economic coercion
what it could not directly regulate. Either way, 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 imposed by federal authority.
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.