It's not their money to begin with... (Signifying Nothing: how does saying nothing at all become so loud?)

Monday, 29 November 2004

It's not their money to begin with...

…so how could they be angry over losing it? Apparently some universities have taken humbrage at the thought of losing federal funding if they refuse to let military recruiters on their campuses. Given that the federal government’s primary mission is defending the country, and that these universities are feeding at the federal trough, it seems only natural that the feds would require access for recruiting as a condition of getting the money.

The free speech argument is the lamest thing I’ve ever heard. No one is stopping them from speaking; they’re simply saying it might cost them federal funds if they don’t give the military access. They can say whatever they want, just not on the federal nickel.

A 1995 law, known as the Solomon Amendment, bars the federal government from disbursing money to colleges and universities that obstruct campus recruiting by the military. As amended and interpreted over the years, the law prohibits disbursements to all parts of a university, including its physics department and medical school, if any of its units, like its law school, make military recruiting even a little more difficult. Billions of dollars are at stake, and no university has been willing to defy the government. Indeed, several of the law schools that are members of the Forum for Academic and Institutional Rights, the group that sued to block the new law, have not been publicly identified.
Among the institutions willing to be named are the law schools of New York University and George Washington University. The law faculties of Stanford, Georgetown and several other law schools are also members of the group. E. Joshua Rosencranz, who represents the plaintiffs in the suit, said the reluctance of several of his law school clients to be identified publicly was driven by fear. “They don’t want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians,” Mr. Rosencranz said.

James has more.

9 comments:

Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.

1. Xrlq wrote @ Mon, 29 Nov 2004, 6:45 pm CST:

I agree that the free speech argument is lame, but it’s not completely retarded. To the extent that allowing or not allowing the military to recruit on campus constitutes “speech,” the financial consequences to speaking/not speaking are significant.

2. Robert Prather wrote @ Mon, 29 Nov 2004, 7:00 pm CST:

Jeff,

I thought you were a textualist? What am I missing? Where in the constitution does it say they’re entitled to that money? Sure, it’s an opportunity cost, but people make trade-offs all the time. They just need to decide what they value more—blocking recruiters, or receiving federal funding. There’s a longer term argument as to whther it’s the right policy for the government to follow, but settling it in the courts on free speech grounds seems like the worst approach.

3. Xrlq wrote @ Mon, 29 Nov 2004, 8:15 pm CST:

It’s not a question of being entitled to the money per se, but to government conditioning it on what message is spoken, and thereby using such aid as a tool to control what would otherwise be constitutionally protected speech.

This case involves a rather tortured notion of speech, so let’s try a cleaner example: party affiliation. You have a constitutional right to be a Democrat or a Republican if you want to. The federal government has a constitutional power to tax you, pretty much at whatever rate it wants. It’s perfectly constitutional to tax all income at a rate of 40%, and it’s also constitutional to tax all income at a rate of 30%, but it is not constitutional to tax all income earned by Democrats at a rate of 40% and tax all Republicans at a rate of 30%.

4. Cassandra wrote @ Mon, 29 Nov 2004, 10:38 pm CST:

Yes, but isn’t it interesting that, despite their attempts to frame this as a free speech issue, these universities would not be forfeiting federal money because of something they wish to say; but because they wish to prevent others from speaking freely in an academic setting?

It seems rather ironic that those they would silence are the ones whose duty it is to protect those freedoms. Who have for generations given their lives in pursuit of this duty.

This hardly seems a sentiment of which the Founding Fathers would have approved.

5. Xrlq wrote @ Tue, 30 Nov 2004, 12:27 pm CST:

Cassandra, I agree – barring military recruiters is a really crappy example of “speech.” After all, there are a zillion other ways the university can express its “anti-discrimination” view without shutting anyone out of the process. That is why I hope the ruling will be reversed, and suspect it will be if the SC rules on it at all. I just don’t think it will be reversed on the basis that the federal funds weren’t theirs to begin with, a theory that proves too much.

6. Xrlq wrote @ Tue, 30 Nov 2004, 1:52 pm CST:

I usually agree with Xrlq, but after mulling this issue over for a while, I have to disagree with him here and give this one to Robert. It’s all well and good to talk about freedom of speech, but when government itself is the one doing the “speaking,” it has no duty to give equal (or any) time to expressing views with which it disagrees, any more than you or I have such a duty when we are the ones doing the speaking. If military-bashing universities have a “right” to federal aid, so do racist universities, and so does the Klan. Of course government can’t condition federal aid on any religious affiliations – that would be a blatant violation of the Establishment Clause – but as long as the speech is on something the government has a right to opine on – in this case, support for the military – the federal government should be allowed to “say” what it wants. What’s next? Should the ad company that makes those dreadful “army of one” ads have a right to use their federal funds to make a new line of ads that criticizes them, or even one that actively discourages people from enlisting in the military at all?

So Xrlq is wrong and Robert is right. Oh wait, I am Xrlq, aren’t I? Crap.

7. Robert Prather wrote @ Tue, 30 Nov 2004, 3:11 pm CST:

Well, in that case I’ll have to agree with Xrlq: the SCOTUS does tend to answer only those questions that are posed to it, correct? In that case they might just say it’s not speech and leave it at that.

8. Xrlq wrote @ Tue, 30 Nov 2004, 5:12 pm CST:

They might, but that wouldn’t make the issue go away entirely. Whether or not the exclusion of military recruiters is characterized as “speech,” its bound to be cast as a constitutional right somehow, e.g., freedom of association, or the general right of a property owner to exclude others (including military recruiters) from his property. So we still have the same basic issue: may the federal government condition funding on how/if a private person exercises a constitutional right? I think the general rule is yes.

Dave Huber has an interesting take on this: if universities can't lose federal funding for excluding military recruiters, surely the Boy Scouts can't lose their assistance from the military or other federal agencies for excluding gays. Of course, the universities will respond that "academic freedom" trumps all, i.e., universities are special. I wish I was special, but I'm a creep.

9. Cassandra wrote @ Tue, 30 Nov 2004, 10:31 pm CST:

Oh for Pete’s sake…

I just got home and I’ve had entirely too much to drink.

I was sure by now you all would have decided that I was sweet reason itself, and everyone else on the planet was looney tunes.

Trying to think is going to be a bridge too far tonight – my brain imploded somewhere in the middle of comment #6. I tend to agree with #5, but have a nasty feeling that simultaneously agreeing and disagreeing with Xrlq while he is arguing with himself has somehow violated the Space-Time Continuum.

If we all wake up in the morning and it’s 1949, I don’t want to hear about it. You’ll have to take it up with the responsible party.

Comments are now closed on this post.