Supreme Court Helps Out Kagan

[ Posted Monday, June 28th, 2010 – 17:50 UTC ]

A Supreme Court ruling just out may serve to blunt Republican criticism of Elena Kagan, who started her confirmation hearings today in the Senate. So far, Republicans haven't come up with much of any substance to attack Kagan on (although I admit, I haven't watched any of today's confirmation hearings yet), but they all pretty much agree upon one issue -- the fact that Kagan, as dean of the Harvard law school, upheld a school policy of barring military recruiters from campus due to the fact that the military discriminates against gays. But the ruling in Christian Legal Society v. Martinez seems to give the high court's imprimatur to universities not allowing groups that practice such discrimination on campus -- which Kagan can now point to in defense of her position.

The case was decided in favor of a California law school's right to deny recognition to a Christian group, for its discriminatory policy on gays. While C.L.S. allows all students to attend its meetings, "voting members and officers must affirm its Statement of Faith," which "include[s] the belief that Christians should not engage in sexual conduct outside of a marriage between a man and a woman."

C.L.S. argued that their right of free assembly and free speech were at stake, but the court disagreed in a 5-4 decision. C.L.S., the court reasoned, had every right to assemble and speak off campus, but the university also has a right to have the final say about what takes place on their campus.

From an Associated Press article on the ruling:

"A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view's validity should be tested through free and open discussion," [Justice] Kennedy said.

Justice John Paul Stevens was even harsher, saying while the Constitution "may protect CLS's discriminatory practices off campus, it does not require a public university to validate or support them."

Stevens, who plans to retire this summer, added that "other groups may exclude or mistreat Jews, blacks and women – or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities."

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, called the decision a "huge step forward for fundamental fairness and equal treatment."

In a way, the court ruled that the university had the right to decide what happened on its own campus, including barring groups which advocated discrimination. Which brings us to the question of Kagan and the military recruiters.

The official "Don't Ask, Don't Tell" policy is nothing more than such discrimination codified into law. Universities have been barring military recruiters from their campuses as a result, using the same reasoning as when they bar official recognition of discriminatory groups such as C.L.S. The federal government, however, decided to play hardball with universities who were kicking their recruiters off campus -- using the power of the purse. Most large state universities (and even large private universities) take federal money in some form or another. Research grants are probably the most visible of this federal largess. And the federal government decided to take its bat and ball and go home, as it were. The feds told the universities that if they weren't going to allow military recruiters on campus, then they could just get along without any federal money whatsoever. This -- for large universities -- forced them to relent, and allow the recruiters back on campus. This law was challenged, but the Supreme Court ruled that it was perfectly fine for the feds to yank funding to universities that wouldn't allow its military recruiters on campus.

In the midst of all this, Kagan served as dean of the Harvard law school. While in this position, she supported barring the military recruiters on campus, urged students to demonstrate against the policy, and spoke out against it, calling it "a profound wrong -- a moral injustice of the first order." But, after the Supreme Court ruled that the feds had the right to yank their money, she relented and let the recruiters back on campus.

Which Republicans are sure to bring up, during her hearings (if they haven't already done so, I should add). The Republican position, of course, is that discrimination is fine as long as it is the federal government doing the discriminating. Or something close to that. So look for some moral outrage and caustic comments about insufficient patriotism in wartime from the Republicans on the Senate Judiciary Committee.

But now the Supreme Court has yanked the rug out from under a major part of this argument -- that Kagan shouldn't have even had the option to bar the military recruiters from campus. Because today's ruling affirms that right for colleges and universities. Universities are indeed allowed to set guidelines and bar groups who do not meet those guidelines. And if one of the guidelines is "no sexual orientation discrimination is allowed" then that pretty much rules out the military under Don't Ask, Don't Tell.

Now, you can call the universities who let the military recruiters back on campus (in order to keep the flow of federal dollars coming) insufficiently dedicated to the principle of equality -- since they made a bottom-line type of decision that their school couldn't survive without federal money rather than taking the heroic stance of giving up the funding. It's certainly a debatable point.

But you can no longer argue that universities don't have the right to decide for themselves which groups they allow on their campus -- in other words, if the school did refuse federal funding, that the school wouldn't be legally allowed to continue barring military recruiters.

Perhaps the point is too subtle for Republican detractors of Kagan. Perhaps they won't even take today's ruling into account when they launch their attacks upon her in committee and on the Senate floor. Republicans, truth be told, already know Kagan is going to be confirmed, and are mostly just "going through the motions" in an election-year exercise meant to rabble-rouse their base a bit (Supreme Court hearings always get a party's base riled up and sending in donations, whether from the left or the right).

But with today's ruling in Christian Legal Society v. Martinez, Kagan's got a much better answer to these criticisms. Any school's administration now has the stamp of approval of the Supreme Court to keep groups which advocate discrimination off their campuses -- indeed, it should be seen as part of the school administration's job to uphold such rules. And that's all Kagan was doing at Harvard. And until Don't Ask, Don't Tell is repealed, any school which decides to forego federal money has every right to bar military recruiters from their campus. Of course, that's the real answer to the problem; but until the military extends full equality to all, universities are well within their rights to refuse to allow the military to recruit their students on their campuses.


Cross-posted at The Huffington Post

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-- Chris Weigant


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