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Oh the irony! Boy Scout law used against college military recruiters
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| MisterOpus1 |
| quote: | November 30, 2004
Colleges Can Bar Army Recruiters
By ADAM LIPTAK
Universities may bar military recruiters from their campuses without risking the loss of federal money, a federal appeals court ruled yesterday.
A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, found that educational institutions have a First Amendment right to keep military recruiters off their campuses to protest the Defense Department policy of excluding gays from military service.
The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory.
The 1995 law at issue in the decision, the Solomon Amendment, barred 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 law schools that are members of one of the groups that sued to block the law, the Forum for Academic and Institutional Rights, 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 in the group.
A spokesman for the Justice Department, Mark Corallo, said no decision had been made on an appeal.
"The United States continues to believe that the Solomon Amendment is constitutional," Mr. Corallo said. "We believe that Congress may deny federal funds to universities which discriminate and may act to protect the men and women of our armed forces in their ability to recruit Americans who wish to join them in protecting their country."
The government can ask the full appeals court to review the decision by the three-judge panel or ask the Supreme Court to hear the case. In either event, the government may also ask for a stay of the decision.
In the meantime, colleges and universities are free to limit military recruiters' access to their campuses, said E. Joshua Rosenkranz, who represents the law schools in the suit.
"Now every academic institution in the country is free to follow their consciences and their nondiscrimination policies," Mr. Rosenkranz said. "Enlightened institutions have a First Amendment right to exclude bigots. In a free society, the government cannot co-opt private institutions to issue the government's message."
He noted, though, that most law schools' policies had never completely barred recruiters on campus. Most simply withheld some forms of assistance, like arranging interviews and posting notices.
The law schools' antidiscrimination policies do not specifically focus on the military. They apply to all potential employers with an announced policy of discrimination on the basis of, among other factors, race, sex and sexual orientation.
The dean of the New York University Law School, Richard L. Revesz, said he welcomed the decision.
"We are gratified," Mr. Revesz said, "by the court's protection of our right to exclude from on-campus interviews employers who refuse to hire qualified students simply because of their sexual orientation."
Mr. Rosenkranz said the reluctance of several law schools to be publicly identified was driven by fear.
"They don't want retribution that is exacted behind closed doors by faceless bureaucrats and vindictive politicians," he said.
The appeals court said the law violated First Amendment rights of the schools in two ways.
First, Judge Thomas L. Ambro wrote, the schools are entitled not to associate with groups whose policies they oppose.
"Just as the Boy Scouts believed that homosexual conduct is inconsistent with the Scout Oath," Judge Ambro wrote, "the law schools believe that employment discrimination is inconsistent with their commitment to fairness and justice."
Second, Judge Ambro said, the presence of military recruiters on campus forced universities to convey a message with which they disagreed. That is, he said, a form of compelled speech prohibited by the First Amendment.
He noted, too, that the military had other ways to recruit lawyers, including radio and television advertising.
Judge Ambro was appointed by President Bill Clinton. Judge Walter K. Stapleton, who was appointed by President Ronald Reagan, joined the majority.
A dissenting judge, Ruggero J. Aldisert, appointed by President Lyndon B. Johnson, said the decision was misguided, particularly in wartime.
"What disturbs me personally and as a judge," Judge Aldisert wrote, "is that the law schools seem to approach this question as an academic exercise, a question on a constitutional law examination or a moot court topic, with no thought of the effect of their action on the supply of military lawyers and military judges."
"No court heretofore has ever declared unconstitutional on First Amendment grounds any Congressional statute specifically designed to support the military," he added. "It bears note that the military's policy against homosexual activity has been adjudged by a number of our sister courts of appeal not to violate the Constitution."
Judge Aldisert took issue with the majority's First Amendment analysis, noting that nothing in the law forbade the law schools to criticize the military's policy on gays.
Howard J. Bashman, who helped write a supporting brief on behalf of students who favored the law, said the decision would hurt the military and the public.
"A ruling of this sort will cause the military to end up with a lower quality of lawyer," Mr. Bashman said. "These lawyers are involved in targeting decisions and in decisions about how prisoners have to be treated."
http://www.nytimes.com/2004/11/30/n...kTLKYB+HbMyckgg |
That is what you call a little bit of legal irony. Or payback. Whichever you call it, what a strange but interesting means of turning this Boy Scout law around on its head. |
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| Dervish |
| quote: | | [i][b]The 2-to-1 decision relied in large part on a decision in 2000 by the United States Supreme Court to allow the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a First Amendment right to bar gays, the appeals court said, law schools may prohibit groups that they consider discriminatory. |
Dude (as you've highlighted) thats some scary legislation. "You have been legally proved to prefer the cock, and as such you may not be a scout leader, however if you may prove that you are bi sexual, via the medium of picture (of you beasting some bird) you may proceed in your effort to become a scout leader.... ah men.... praise god jesus christ... hallehuh... thank god almightly for the law..." said the judge.
Actually I'm slightly drunk and in a very scarcastic mode did that make sence? (even the god bit related to the overly relegious american legislation?) |
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| DaveSZ |
| quote: | Originally posted by Dervish
Dude (as you've highlighted) thats some scary legislation. "You have been legally proved to prefer the cock, and as such you may not be a scout leader, however if you may prove that you are bi sexual, via the medium of picture (of you beasting some bird) you may proceed in your effort to become a scout leader.... ah men.... praise god jesus christ... hallehuh... thank god almightly for the law..." said the judge.
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That sounds about right.
Keepin' the niggras and homos downs is part of Kill Em All Jesus' divine plan.
;)
http://msnbc.msn.com/id/6596687/
Alabama vote opens old racial wounds
School segregation remains a state law as amendment is defeated
By Manuel Roig-Franzia
Updated: 2:47 p.m. ET Nov. 30, 2004
TUSCALOOSA, Ala. - On that long-ago day of Alabama's great shame, Gov. George C. Wallace (D) stood in a schoolhouse door and declared that his state's constitution forbade black students to enroll at the University of Alabama.
He was correct.
If Wallace could be brought back to life today to reprise his 1963 moment of infamy outside Foster Auditorium, he would still be correct. Alabama voters made sure of that Nov. 2, refusing to approve a constitutional amendment to erase segregation-era wording requiring separate schools for "white and colored children" and to eliminate references to the poll taxes once imposed to disenfranchise blacks.
-more |
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| imokruok |
If the reasoning is based on the Boy Scout case, the Supreme Court will have a fun time overturning this one. Rather than a freedom of speech/association case, this is merely a federal funding case. Congress has the "power of the purse," and has broad discretion in how federal funds are spent.
Additionally, since when did the Boy Scouts take federal aid? The funding mechanism is far more direct with Harvard than the indirect assistance that the Boy Scouts get by being able to use public space. And the more steps you take away from the funding source, the less likely a court is to uphold a restriction tied to those funds.
Keep in mind that Congress always has the final decision. They can say the hell with the Solomon Amendment, and just cut off funds on their own. |
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| smokeape |
Well that certainly won't help the military meet recruiting shortfalls. Lowering standards and throwing more enlistment money at the problem will be the only solutions short of Congressmen voting to involuntarily send the sons and daughters from their districts off to war in a draft. A draft will never happen unless nK or someone else kicks it in gear, then we have no reasonable choice other than a full mob. In the meantime, something has to give.
:mad:
[[[smoke]]] |
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| Yoepus |
huh.
thats odd.
i could have sworn me and occrider already argued about this in this thread...:conf: :nervous: |
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| smokeape |
Never saw an argument about solving recruiting shortfalls. That would be the logical follow on to the impact of recruiters being barred from college campuses. Only saw a few stupid remarks about homos and segregation.
:o
[[[smoke]]] |
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| occrider |
| quote: | Originally posted by Yoepus
huh.
thats odd.
i could have sworn me and occrider already argued about this in this thread...:conf: :nervous: |
It's an amalgamation of a previous arguemnt I think. I have no idea what the conclusion of our argument was, but I can't be bothered to search much less debate this variant ... |
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| smokeape |
| quote: | Originally posted by occrider
It's an amalgamation of a previous arguemnt I think. I have no idea what the conclusion of our argument was, but I can't be bothered to search much less debate this variant ... |
Pointless search anyhow. Bottom line is our society is preventing our military from recruiting volunteers to defend the very same society.
;)
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| Dervish |
| quote: | Originally posted by smokeape
Never saw an argument about solving recruiting shortfalls. That would be the logical follow on to the impact of recruiters being barred from college campuses. Only saw a few stupid remarks about homos and segregation.
:o
[[[smoke]]] |
Yeah sorry about that I was a bit drunk and couldn't read the whole thing, just sort of saw that and thought it was funny. |
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