Liberals display sudden disdain for federal power

December 12, 2005|By STEVE CHAPMAN

CHICAGO -- Conservatives have not been models of consistency lately. President Bush, after all, has vastly enlarged the federal budget, expanded Washington's role in local school affairs and signed a campaign finance bill, even while retaining the allegiance of people who abhor all these things. But last week, liberals had a turn at exhibiting their, um, confusion.

For years, they have favored using federal power to force universities to do things that some schools would rather not do. An institution that accepts federal funds, for example, may not discriminate on the basis of race. Title IX, beloved by feminists, compels colleges getting such aid to offer equal opportunity for female students in sports and other activities - with the feds defining what constitutes "equal opportunity."

Suppose a school disagrees with these mandates? It will get no sympathy from liberal groups. When you accept public subsidies, they announce, you must defer to the public's sense of fairness and equity. If you want to do things your own way, do them with your own money.

But in a case heard by the U.S. Supreme Court on Tuesday, it appears that the liberal affection for assertive government has a limit. A law known as the Solomon Amendment requires universities getting federal funds to grant access to recruiters for the military on the same terms as recruiters for any other employer. Many law schools object because of the military's exclusion of gays under its "don't ask, don't tell" policy, and they want the court to excuse them from this obligation. All of a sudden, they are smitten with the idea that private institutions should be allowed to run their campuses as they see fit.

Those who want to overturn the law say it violates the First Amendment by forcing them to promote a message they don't accept - that discrimination against gays is acceptable. But they didn't object when Bob Jones University was punished by the federal government for racial discrimination. To keep its tax-exempt status, it would have had to stop discriminating, even though that would have meant promoting a message starkly at odds with its religious teachings.

Liberals insist that combating racial and sexual discrimination is such a "compelling interest" that the government has more leeway when it is at stake. But surely there is no government interest more compelling than defense of the nation from attack, which the Solomon Amendment serves.

When you take federal money, you can expect it to come with strings attached. All the Solomon Amendment requires universities to do is not penalize military recruiters by barring them from campus or withholding the assistance given to other employers. The schools remain free to express their rejection of "don't ask, don't tell" as often as they want, in any way they choose.

The law schools say that far from discriminating against the armed forces, they treat them the same as everyone else: They exclude any employer that rejects applicants on the basis of sexual orientation. But other employers have a choice, which the military does not. Its policy, after all, was established by federal law.

If universities have a beef, it's with Congress and the president, not with the military. But they seem to have no objection to associating, at least in a financial way, with the same people who mandated this discrimination. They merely want to be free to reject the conditions attached to the government funds - an option not granted to schools that prefer to ignore federal commands on race and sex.

Some liberals are aware that this argument could lead the court down a scary path. Harvard law professor Laurence Tribe, for one, is not confident that if the universities win the case, "the Supreme Court would write an opinion with the delicacy required to strike down the Solomon Amendment in a way that does not endanger" enforcement of civil rights laws. Schools such as Bob Jones University, he fears, "might well be able to generate a First Amendment argument" for rejecting federal dictates. In that case, colleges would have more freedom to set their own policies on women and minorities.

It might be a good thing if the federal government were not so aggressive in using its funding power to coerce universities to follow policies they may not like. But it's a surprise to hear liberals admitting that.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail is schapman@tribune.com.

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