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November 30, 2004

Military Kicked Off Campuses
Bad Day for Human Rights

A Court of Appeals has declared that Colleges can bar Army recruiters from campus. The decision is here.

Here is the gist of the decision-- the government can be forced to fund an organization that bars free speech by other groups if that organization doesn't want to be associated with those other groups. We may applaud this court excluding military recruiters for discrimination against gays, but when taxpayers are forced to fund hateful organizations or just big corporations who wield internal power to silence critics, we won't be so excited.

The main precedent for this case is the 2000 decision that allowed the Boy Scouts to exclude gays-- known as Boy Scouts v. Dale. That decision struck down New Jersey's anti-discrimination law as applied to the Boy Scouts in the name of the "free speech" rights of private organizations to exclude views they don't like.

Kos thinks this is sweet irony, but it's a terrible decision based on some of the worst precedents in constitutional law and that opens the door to massive organizational discrimination and exclusion if affirmed.

And let's be clear: this is a massive and dangerous expansion of the principles underlying the Boy Scouts decision. In that earlier decision, it was held that the government could not force a completely private organization to accept as a leader a person who's public views were at odds with the organizational principles. It's not even clear that the Boy Scouts under that decision are allowed to exclude gays who keep their views quiet, so it could be a limited precedent. However, this Third Circuit decision is far more expansive. Not only can a university refuse to hire peoples whose views they disagree with, they can exclude them altogether from their physical property. And the government is REQUIRED to fund such exclusionary organizations.

By the logic of the case, if the Klu Klux Klan sets up a university to teach hate speech, they would be within their organizational free speech rights to exclude blacks and the government would be required to fully fund that university in the same way as all other colleges.

Back in 1984, the Supreme Court in Roberts v. United States Jaycees declared that organizational free speech rights must yield to government regulation when such organizations are involved in any even quasi commercial activity. In that case, Minnesota state law required that women be admitted into the Jaycees and the Supreme Court declared that the free speech rights of the Jaycees must yield to government regulaion.

As Justice Brennan wrote:

[t]he right to associate for expressive purposes is not, however, absolute.
Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas..."
I am all for full-scale protests against discrimination by the military in its recruitment and I think the laws requiring that colleges accept recruiters is a terrible law. But this legal decision opens the way for a range of anti-discrimination and access laws to be abolished.

In fact, the case discusses California legal rules that require malls in that state to allow political activists to talk to customers. A lot of conservatives have called for the California access rules to be struck down as violating the free speech of the mall owners. Back in 1984, the Supreme Court upheld the California mall access rules as constitutional, but this decision casts doubt on that decision-- or at least it indicates that similar free speech rules in other venues could be illegal.

BTW I want to be clear that the extreme slippery slope I outline above about the government being forced to fund a KKK university would not have to happen under this decision-- there are some other constitutional balancing issues involved. But the logic of the Third Circuit decision takes us in that direction and it's not a direction we want to go.

This is one decision that I pray that the Supreme Court overturns.

Update: Additional post on topic here.

Posted by Nathan at November 30, 2004 09:01 PM