Wrong side of argument chosen by government

The following editorial appeared this week in the San Francisco Chronicle.

There is nothing unusual or inherently wrong with Congress attaching conditions to federal funding.

The oddity about the case before the U.S. Supreme Court on Monday — involving access for military recruiters on college campuses as a condition of federal funding — is that the government is on the wrong side of a discrimination argument.

In recent history, federal-funding conditions have often been about ending discrimination. For example, Title IX prohibits sex discrimination in any public or private program that receives federal funding. Various congressional spending plans have included affirmative-action requirements to ensure women and minorities have access to jobs or contracts that American taxpayers are helping to fund.

Yet, in the flap over military recruiting, some universities — particularly law schools — argue that the Pentagon’s “don’t ask, don’t tell” policy violates the anti-discrimination rules that apply to other on-campus recruiters. They maintain that the funding conditions violate their right of free speech.

They did not appear to get much sympathy during oral arguments before the high court. New Chief Justice John Roberts suggested that schools that didn’t like the military policy were free to object — they could simply turn down the federal money. Soon-to-retire Justice Sandra Day O’Connor observed that colleges that wanted to preserve their federal funding were not precluded from posting disclaimers about their disagreement with “don’t ask, don’t tell.”

The real source of this problem is a policy that treats gays and lesbians, who are serving their country, as second-class citizens. The use of tax dollars to preserve discrimination is outrageous and unacceptable.