December 11, 2005
'Don't Ask, Don't Tell' Hypocrisy
By George
Will
WASHINGTON -- The
entitlement mentality produces petulant insistence on an ever-higher
ratio of rights to responsibilities. Unsurprisingly, this mentality
flourishes on campuses, where tenured faculty and privileged students
live entitled lives supported by the taxes and generosity of others.
The mentality was on vivid display in the Supreme Court last Tuesday
when an association of 36 law schools and faculties asserted an
audacious entitlement.
Many schools bar
military recruiters because the schools oppose the ``don't ask,
don't tell'' policy that prevents openly gay people from serving
in the military. The schools asked the court to declare unconstitutional,
as a violation of the First Amendment protections of freedom of
speech and association, the law that denies federal funds to any
school that denies military recruiters the same access to students
that any other employer enjoys.
Federal assistance
to institutions of higher education was about $35 billion last
year, so the schools flinch from the price tag on their gay rights
principles, which in this case dovetail neatly with their anti-military
prejudices. The schools cite the principle that government cannot
condition receipt of a government benefit on the loss of a constitutional
right. The government replies that Congress frequently makes the
receipt of federal funds conditional on the recipient doing certain
things to further a legitimate government interest, such as recruiting.
And the government
denies that the law on recruiters' access abridges schools' rights
of speech and association. The schools' lawyer argued that it
does because the ``forced hosting'' of recruiters amounts to a
``crisis of conscience'' over compelled and subsidized speech.
The schools say they are compelled to communicate a message of
support for the military's policy regarding gays, and to subsidize
the military's message of disapproval of gays. But last week Chief
Justice John Roberts said that ``nobody'' infers an academic institution's
support for the views and policies of every employer allowed to
recruit on campus. And as Justice Sandra Day O'Connor noted, schools
are free to communicate their moral and political stances constantly.
Certainly schools are not bashful about doing so. But the court
has held that ``students may not be regarded as closed-circuit
recipients of only that which the (school) chooses to communicate.''
During oral arguments
last week, the schools had many occasions to wince. Regarding
the schools' theory that any conduct can be imbued with ``communicative
force,'' Justice Antonin Scalia wondered whether the schools might
also justify banning military recruiters during a war the faculty
disapproved, because allowing the recruiters would be tantamount
to the schools endorsing the war.
Or because the professors
object to the military barring women from combat, or using land
mines. The possibilities are as numerous as the professors' reasons
for interposing their moral sensibilities between Congress and
its constitutional power to ``raise and support armies.''
Furthermore, more
than four other justices probably share Scalia's incredulity concerning
this implication of the schools' argument: When an individual
or institution gives as a reason for violating the law the fact
that he or it wants to send a message, the violation acquires
First Amendment protection. By such reasoning, a school barring
blacks from campus could say its conduct is infused with an expressive
purpose, hence shielded by the First Amendment.
The schools' selective
sensitivity about that amendment is amusing, given that many universities
use speech codes to enforce ``progressive'' sensibilities and
compel students to pay fees that finance speakers and other expressive
activities offensive to many of those compelled. Schools eager
to ban military recruiters from a few hours of access to students
who want to meet them have faculties that expose students to a
one-sided bombardment of political views. Furthermore, universities
are nurseries of ``progressives'' who support campaign regulations
by which government supervises the quantity, content and timing
of political speech, and who favor public financing of campaigns,
which requires millions of taxpayers to fund political advocacy
they oppose.
A striking alteration
of America's political landscape since 1960 has been the marginalization
-- actually, the self-marginalization -- of the professoriate.
An inhospitable campus climate has prompted the growth of public
policy think tanks and publications that sustain a conservative
intelligentsia that helps elect and staff conservative administrations.
And faculties have adopted increasingly adversarial stances toward
an increasingly conservative public and its institutions.
Today's schools bristle
with moral principles that they urge upon the -- so they think
-- benighted society beyond their gates. But as Roberts blandly
reminded the schools regarding their desire to bar military recruiters:
``You are perfectly free to do that, if you don't take the money.''
©
2005, Washington Post Writers Group
