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The Elite Left vs. the Military

December 5, 2004

Hypocrisy is a predictable aspect of politics. For instance, liberal activists badly want to overcome the 1996 Solomon Amendment, which requires universities to allow military recruiters on campuses or lose all federal funding. Many universities want to ban the recruiters because of the “Don’t ask, don’t tell” policy of the armed forces on homosexuality. So the activists resent the heavy hand of government telling campus officials what to do.

Many of the same activists have a long record of imposing the same heavy and interfering hand when it suits them — for instance, applying Title IX in a way that requires colleges to eliminate hundreds of male sports teams, often to create more women’s teams in sports that females do not want to play. Congress never intended this, but the activists found a way to get it done by establishing quotas and forcing the universities to comply.

On campus, extreme anti-discrimination regulations have long been the left’s chief weapon in the culture wars, justifying everything from draconian speech codes to the defunding or de-recognition of religious groups on campus. Last week, the 3rd U.S. Circuit Court of Appeals upheld a challenge to the Solomon Amendment by lawyers and law schools, though that amendment was closely modeled on an adaptation of Title IX: If universities do not allow recruiters on campus, as Congress directed, the universities would lose all federal funding, which could run to hundreds of millions of dollars.

In the 2-1 decision, the majority found the government guilty of compelling speech by requiring the law schools to allow military recruiters and forcing the schools to cooperate with the recruiters by setting up receptions and stuffing student mailboxes with fliers on military service. The schools argued that as “expressive associations,” they were being compelled to say, in effect, that all recruiters are equal, when they believe the military is anti-gay and therefore not equal. (Question: Do the administrators, professors and students at a law school make up an “expressive association” any more than the administrators, players and fans of the Green Bay Packers make up such a group?)

The government complicated its case with a post-9/11 revision of the Solomon Amendment that required schools to actively assist military recruiters who visit campuses, just as it does with corporate recruiters, but the appeals court said that even the basic provision mandating bare access by the military was unconstitutional. This is a stark decision that very well may be reversed on appeal.

The strongest argument against the law schools is that universities should defer to Congress’ judgment in matters involving the armed forces, particularly in a period of great peril to the nation. In addition, it isn’t clear as to who is compelling whom. The law schools say they are being compelled by government, but they are compelled also by the Association of American Law Schools, which directs them not to allow military recruitment. Imposed policy is wrong, except when you agree with it.

The schools offer a free-speech defense, but in reality they are suppressing free speech themselves by silencing others and preventing freedom of association by banning contact between students and recruiters. It is the rough equivalent of a bookstore refusing to sell books with which it disagrees. The store may have the right to do so, but it’s a tacky tactic that shows little respect for allowing people to make their own choices.

If the law schools respected students, they would allow military recruiters to speak. The schools could encourage those who disagree with armed forces policy to picket, boycott or argue for an end to “Don’t ask, don’t tell.” In effect, the schools are teaching future lawyers that if you disagree with anyone, it’s best to ban or censor. Unfortunately the campuses are fond of imposing their own version of contested cultural norms, instead of encouraging free argument over what those norms should be.

Another factor needs to be talked about. This issue is not just about gay rights and anti-discrimination. It also involves a disdain, if not hatred, for the military that is very strong among academics and the elite left. It preceded the “Don’t ask, don’t tell” controversy, and it would surely still be felt on campuses if that policy were revoked or if military recruiters disappeared tomorrow. The elite left vs. the military is a long-running struggle in the culture war. Let’s discuss this plainly and argue it out.

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