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'Don't Ask, Don't Tell' Hypocrisy

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By George F. Will
Sunday, December 11, 2005

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 on 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's 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 of, because allowing the recruiters would be tantamount to the schools' endorsing the war.

Or because the professors object to the military's 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-mar-

ginalization -- 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."

georgewill@washpost.com


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