Tuesday, the Supreme Court heard oral arguments in FAIR v. Rumsfeld, a case that pits some of the country's most elite institutions of higher learning against the military.
The plaintiffs in FAIR, an acronym for the Forum for Academic and Institutional Rights, would have you believe this is a momentous First Amendment case about the power of government to compel private entities and individuals to "propagate, accommodate and subsidize" policies they abhor.
To put the judicial proceedings in context, step back from the sensational claims of legal briefs for a moment and read the results from a recent poll by the Pew Research Center for the People and the Press. The poll asked opinion leaders in various fields whether efforts to establish a stable democracy in Iraq will succeed.
The most optimistic response came from members of the military, with 64 percent saying the U.S. venture in Iraq will succeed while 32 percent think it will fail. Among the most pessimistic Americans, above only scientists and engineers, are academics, 71 percent of whom believe the effort to democratize Iraq is a blunder while only 27 percent believe it will triumph.
The general public, by the way, is closer to the military perspective, with 56 percent expecting eventual success while 37 percent expect failure.
I quote the Pew poll not to endorse one point of view or the other public opinion is notoriously fickle.
It does, however, illustrate the massive philosophical divide between the military and academia, the original fault lines of which run back to the 1960s and opposition to the Vietnam War.
Prior to that time, universities played a significant, even a patriotic role in supporting the military. But in that hyperbolic era, academia vented its rage not only at the politicians who directed the war effort but also at those in uniform who answered to civilian leadership. The most significant blow it delivered to the military was to prohibit ROTC programs on campuses across the nation, a ban still in place at many of the nation's top universities.
Rather than redress the excesses of the past and bridge the chasm separating the military from higher learning, academia is instead trying to widen the gap. At issue is the Solomon Amendment, which Congress passed in 1994 and President Clinton signed into law in 1995.
The amendment requires universities to grant the military equal not privileged access to students as other businesses or organizations they allow on campus for recruitment efforts. Universities that fail to give the military equal access can lose their federal funding.
That's the crux of the great First Amendment battle FAIR claims to be waging at the Supreme Court. Because the military has an official policy of "don't ask, don't tell" with regard to homosexuality which was, again, written by Congress and signed into law by Clinton the plaintiffs maintain that granting equal access to military recruiters is tantamount to endorsing discrimination against homosexuals. Withholding federal funding to compel equal access is therefore, they claim, an abridgement of free speech.
One can agree or disagree with whether "don't ask, don't tell" is a discriminatory policy or good public law. But the proper course for those who oppose it is to fight the law itself and the political process that created it, not the military that has no choice about whether to accept it.
The selective indignation of the universities that are party to the lawsuit is revealing. A handful of military recruiters, they assert, somehow compels universities to support policies it opposes. Yet billions of dollars for higher education from Congress which actually wrote the laws academia opposes that the universities readily accept are supposed to have no coercive influence?
This is no court battle over principles. It's about a widespread, decades-old dislike of the military. It's about repeating the mistakes of the past and punishing the military for decisions made by the civilian leadership. And it's about money and the desire of some universities to take it from the federal government without any obligations.