The Supreme Court's decision last week in Rumsfeld v. Forum for Academic and Institutional Rights rejecting a challenge to the government's conditioning of federal funds on law schools' providing access for military recruiters was both unfortunate and unsurprising.
In its reversal of the Court of Appeals' decision, the High Court refused to find that the government suppressed freedom of expression by forcing law schools to treat the military -- which discriminates against homosexuals -- in the same way as employers who do not discriminate on the basis of sexual orientation, even though the schools refuse to allow access to any non-military employer that so discriminates.
The High Court distinguished the access requirements in this case from past cases in which it allowed the Boy Scouts to exclude homosexuals, for example, and allowed parade organizers to exclude a group of gay and bisexual citizens from marching. The law schools had asked the High Court to extend the doctrine of "expressive association" -- the idea that forced inclusion of a member into a particular group or activity compels that group to express a viewpoint with which it does not agree -- to the case of mandating access for a government employer that violates a school's nondiscrimination policy.
Reasonable minds can certainly disagree over the extent to which the funding conditions impermissibly compel expression. But debating the legal merits of the decision at this point is less important than asking how we as a community, we as a student body and we as one of the top institutions of higher learning in this country should respond to this continued endorsement of our government's discrimination.
Now that the central constitutional question is no longer on the table, any time for a "wait-and-see" approach is over. The University now has a responsibility to show its true dedication to its commitment to equality. The High Court's decision may effectively foreclose the ability of the Law School to treat military recruiters as "second-class employers," despite the fact that the government continues to treat homosexuals as second-class citizens. Yet it does not forbid the Penn community from shouting its disdain for the military's discriminatory policies.
As the solicitor general acknowledged during oral arguments, schools can "put signs on the bulletin board next to the door ... [and] they could help organize student protests" in response to the military's presence on campus. The Penn community now must respond to this invitation by being more vocal than ever about the inconsistency of these policies with the University's core values and with the rights of all Americans not to have their government discriminate against them based on criteria that bear no rational relation to any legitimate objective.
In his opinion, Chief Justice John Roberts wrote that "the law schools' effort to cast themselves as just like ... the parade organizers in Hurley and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it." While the law schools' argument is hardly the stretch that the High Court would make it seem, the proper response is to prove that we are, indeed, not voiceless and that we do not have to remain silent while the government uses the power of the purse to perpetuate its discriminatory message. While the University may have to comply with the letter of last week's holding, it does not have to acquiesce in its spirit.
According to the High Court, "Nothing in the Solomon Amendment restricts what the law schools may say about the military's policies. ... Students and faculty are free to associate to voice their disapproval of the military's message." There seems nothing more appropriate -- indeed, nothing more American -- than simply to take the court at its word.
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