Cripes! It's the law!

There's an old saying that "the press is free for those with the means to own one." An updated version of that would have to include the amendment that "speech is free for those with the cash to pay for it." More and more, the ability of institutions to maintain policies at odds with government policies depends on their ability to do without the aid bestowed on those prepared to toe the line or at least shut up.

The May 3 Newark (NJ) Star-Ledger reported on the latest example:

The Supreme Court yesterday agreed to decide whether colleges and universities can block military recruiters from coming on campus because of the Pentagon's discrimination against gays in the armed forces.

The justices said they will hear an appeal brought by the Bush administration, which wants to enforce a 1994 law that permits the federal government to withhold millions of dollars in funding from colleges and universities that deny access to military recruiters.

The law, known as the Solomon Amendment, was struck down 2-1 last year by the 3rd U.S. Circuit Court of Appeals in Philadelphia. The majority ruled that the law infringed on the free speech rights of schools by requiring them to "express a message that is incompatible with their educational objectives."

Before we go any further, though, I want something to be noted clearly and explicitly: It's a 1994 law. Passed in 1994. A time when there was a Democratic Congress and a Democratic president. So I don't want to hear anything about "oh, those right wingers." This was done by the people we're supposed to have happy dreams of getting back in power.

But getting back to the suit, the law's opponents insist that colleges and universities have the right to limit access to any employers that discriminate on the basis of race, sex, or sexual orientation. The Bushites' response is revealing:

The Bush administration maintains that access to campuses for recruiting is necessary to "sustain an all-volunteer military, particularly in a time of war."

Translation of Argument 1: Wars are declared by presidential fiat; Congress's participation is unnecessary and unwarranted. In fact, it's none of their damn business.

"The Solomon Amendment reflects Congress' judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses," acting Solicitor General Paul Clement said in a legal brief.

Translation of Argument 2: Military demands trump constitutional rights. The Pentagon rules!

The government maintains that the law neither interferes with free speech nor compels any type of speech.

"If institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding," said Clement.

Translation of Argument 3: He who pays the piper, calls the tune.

Or, expressed at somewhat greater length, the government can legitimately demand surrender of Constitutional rights as a condition of providing aid even if that results in "viewpoint discrimination" in its distribution - and even if the aid is wholly unrelated to the activities affected by the demand.

After the Sept. 11, 2001, attacks, the Pentagon began strictly enforcing the law. The Defense Department adopted regulations subjecting entire academic institutions, not just their law schools[, which have been the source of most of the opposition,] to a loss of federal dollars. It then sent letters to more than 20 laws schools threatening to cut off federal funding to them and their parent universities if they banned or restricted military recruiting.

In summer 2003, Congress backed up the Pentagon by amending the law to require that military recruiters be given equal access with other employers.

Interstingly, that last part, intended to support Pentagon policy, could potentially undermine the White House's case if it does indeed refer to "equal" access: If the schools are banning or restricting military recruiters on the grounds that the military discriminates in "hiring" - i.e., enlistment - on the grounds of sexual orientation, and if they equally ban or restrict all such discriminating employers, wouldn't that mean they actually are in line with the Congressional mandate?

I actually doubt that point was missed and I expect the law actually says that recruiters must be given the same access as "any" employer, not any "equal" (i.e., affected by the same institutional policy) employer. Which would only serve to repeat, regurgitate, the tenet that everything, everything, law, principle, the Constitution, that all things are to genuflect to the power of that magic incantation "National Security! National Security!" Bow down before its might!