Law School Case Brief
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. - 547 U.S. 47, 126 S. Ct. 1297 (2006)
The Solomon Amendment, 10 U.S.C.S. § 983, denies federal funding to an institution of higher education that has a policy or practice that either prohibits, or in effect prevents the military from gaining access to campuses, or access to students on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer. § 983(b). The statute provides an exception for an institution with a longstanding policy of pacifism based on historical religious affiliation. § 983(c)(2). In order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.
The Forum for Academic and Institutional Rights, Inc. (“FAIR”), is an association of law schools and law faculties, whose members have policies opposing discrimination based on sexual orientation. They sought to restrict military recruiting on their campuses because they objected to the Government's policy on homosexuals in the military. The Solomon Amendment, which provides that educational institutions denying military recruiters access equal to that provided to other recruiters will lose certain federal funds, forced them to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive those funds. In 2003, FAIR sought a preliminary injunction against enforcement of an earlier version of the Solomon Amendment, arguing that forced inclusion and equal treatment of military recruiters violated its members' First Amendment freedoms of speech and association. Denying relief on the ground that FAIR had not established a likelihood of success on the merits, the District Court concluded that recruiting is conduct, not speech, and that Congress could regulate any expressive aspect of the military's conduct. The District Court, however, questioned the Department of Defense (“DOD”) interpretation of the Solomon Amendment, under which law schools must provide recruiters access at least equal to that provided to other recruiters. Congress responded to this concern by codifying the DOD's policy. On appeal, the U.S Court of Appeals for the Third Circuit reversed the District Court's judgment. The Third Circuit concluded that the amended Solomon Amendment violates the unconstitutional conditions doctrine by forcing a law school to choose between surrendering First Amendment rights and losing federal funding for its university.
Did the Solomon Amendment infringe freedoms of speech and association?
On a writ of certiorari, the Supreme Court of the United States reversed the judgment. The Court held that institutions could not comply with the Solomon Amendment by applying a general nondiscrimination policy to exclude military recruiters as it did not focus on the content of a school's recruiting policy, but instead, looked to the result achieved by the policy and compared the access provided military recruiters to that provided other recruiters. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute did not place an unconstitutional condition on the receipt of federal funds. The Court found that the Solomon Amendment did not dictate the content of law schools' speech at all, which was only "compelled" if the school provided such speech for other recruiters. There was nothing approaching a Government-mandated pledge or motto that the law schools had to endorse. Finally, the Court held that accommodating the military's message did not affect law schools' speech because the schools were not speaking when they host interviews and recruiting receptions and the accommodation did not sufficiently interfere with any message of the law schools.
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