King Solomon: Did the Supreme Court Make a Wise Decision in Upholding the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.? - Brook Bristow

• Publication year: 2007

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King Solomon: Did the Supreme Court Make a Wise Decision in Upholding the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.?

In a unanimous decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,¹ the United States Supreme Court upheld the constitutionality of the Solomon Amendment.² The Court ruled that under the Solomon Amendment, military recruiters must be given the same access as nonmilitary recruiters on university campuses.³ The Court's holding clarified three First Amendment⁴ tangential freedom issues: (1) what is and what is not expressive conduct; (2) what constitutes compelled speech; and (3) what is meant by expressive association.

I. Factual Background

In pursuit of their mission to "promote free thought and [to] inculcate principles of justice, law schools across the country have sought to create supportive, inclusive, and tolerant learning environments for their students."⁵ To create and maintain this environment, the Association of American Law Schools ("AALS") and its member schools believe that discrimination, in any form, cannot and should not, be tolerated.⁶ "As part of this effort to eliminate discrimination in legal education, AALS has required its members to avoid discrimination on the basis of race or color since 1951, and on the basis of sex since 1970."⁷ In addition, starting in the 1970s, numerous law schools across the country began to prohibit discrimination on the basis of sexual orientation. Because this trend grew in the ensuing years, in 1990 the AALS amended its bylaws to require all member schools to include sexual orientation in their nondiscrimination policies.⁸ Today, all AALS members have policies that "ban discrimination on the basis of race, national origin, gender, religion, age, disability, veteran status—and sexual orientation."⁹

Because there is no longer a draft in the United States, Congress requires the military to "conduct intensive recruiting campaigns" to encourage military enlistments.¹⁰ Today, the military recruits throughout the country at numerous colleges and universities in order to satisfy its needs—law schools included. In spite of the military's recruiting efforts, in 1993 Congress passed the "Don't Ask, Don't Tell, Don't Pursue Policy."¹¹ Commonly referred to as "Don't Ask, Don't Tell," this law provides that the military may discharge any service member who "engaged in, attempted to engage in, or solicited another to engage in a homosexual act" or "stated that he or she is a homosexual."¹² As a consequence of the enactment of"Don't Ask, Don't Tell," the military has not been able to comply with the nondiscrimination policies of AALS law schools, and as such, many law schools effectively banned military recruiters from on-campus recruiting.¹³ In direct response to these actions, in 1994 Congress enacted the Solomon Amendment, which at the time, specified that "[n]o funds available to the Department of Defense may be provided . . . to any institution of higher education that has a policy of denying, or which effectively prevents, the Secretary of Defense from obtaining for military recruiting purposes . . . entry to campuses or access to students on campuses."¹⁴ During debate on the legislation, Representative Solomon described the need for the Amendment as necessary because "'[r]ecruiting is the key to our all-volunteer military forces . . . . Recruiters have been able to enlist such promising volunteers . . . by going into high schools and colleges and informing young people of the increased opportunities that a military tour or career can provide.'"¹⁵

The Forum for Academic & Institutional Rights, Inc. ("FAIR") is an association composed of various law schools and law faculties that have all adopted antidiscrimination policies that include sexual orientation.¹⁶ The organization's mission is to "'promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.'"¹⁷ In 2003 FAIR sought a preliminary injunction against the enforcement of the unamended version of the Solomon Amendment. FAIR claimed that the First Amendment rights of speech and association of its member law schools had been violated. The district court denied the preliminary injunction because FAIR had failed to establish a likelihood of success on the merits. The court's decision was based in part on its conclusion that military recruiting is conduct, not speech.¹⁸ More specifically, the district court found that the "inclusion 'of an unwanted periodic visitor' did not 'significantly affect the law schools' ability to express their particular message or viewpoint.'"¹⁹

However, in rejecting FAIR's First Amendment claims, the district court expressed concern over the Department of Defense's ("DOD") assertion that the Solomon Amendment requires law schools to give military recruiters the same access that all other recruiters receive.²⁰ In response to this concern, Congress amended the Solomon Amendment in 2004 to codify the DOD's interpretation that law schools must " 'provide military recruiters access to students that is at least equal in quality and scope to the access provided other potential employers.'"²¹ The amendment now withholds "federal funds from institutions that did not afford equal access."²² This new statutory provision requires the career services offices of law schools to distribute recruiting catalogues, post job bulletins, make appointments for students, and allow military recruiters to attend job fairs.²³ Today, the Solomon Amendment provides in pertinent part:

(b) Denial of funds for preventing military recruiting on campus. No funds described in subsection (d)(2) may be provided by contract or by grant to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents—

(1) the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting . . . ; or

(2) access by military recruiters for purposes of military recruiting to . . . information pertaining to students . . . enrolled at that institution (or any subelement of that institution).²⁴

FAIR appealed the decision of the district court on the grounds that the newly amended Solomon Amendment was unconstitutional for the same reasons that the previous version was unconstitutional.²⁵ The Third Circuit Court of Appeals reversed and remanded, ordering the district court to issue the preliminary injunction against the enforcement of the Solomon Amendment.²⁶ The Third Circuit held that the Solomon Amendment was unconstitutional in that it violated the unconstitutional conditions doctrine "because it forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university."²⁷

In rejecting the government's argument that the Solomon Amendment should be analyzed under intermediate scrutiny, the Third Circuit viewed the Solomon Amendment to be subject to strict scrutiny on two grounds.²⁸ First, the court concluded that the Solomon Amendment directly burdened the law schools' First Amendment rights of expressive association.²⁹ In the court's opinion, "the presence of military recruiters on campus would force law schools to send a message that they accept discrimination against homosexuals as a legitimate form of behavior."³⁰ Second, the court concluded that the Solomon Amendment "implicates the compelled speech doctrine because it forces laws schools to propagate, accommodate, and subsidize a message regarding the service of homosexuals in the military with which they disagree."³¹ The court further reasoned that "the government had failed to establish that there are no alternative means for effective recruitment of military personnel that would be less restrictive than the Solomon Amendment."³² Additionally, the court held that a denial of equal access to military recruiters was speech rather than expressive conduct, but that even "'if the regulated activities were properly treated as expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under O'Brien."'³³

The United States Supreme Court granted certiorari to consider whether the Solomon Amendment violated law schools' freedoms of speech and association under the First Amendment.³⁴

II. Legal Background

The First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech."³⁵ "The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need. . . ."³⁶ The First Amendment "embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the Constitution's constraints, but without imposing judicial formulas so rigid that they become a straitjacket that disables government from responding to serious problems."³⁷ As that is the case, the Solomon Amendment has been surrounded by several First Amendment concerns. In enacting the Solomon Amendment, Congress used its Spending Clause power, which gives Congress the power to place conditions on the grant of federal funds.³⁸ However, the power of Congress to place conditions on funding is limited by the unconstitutional conditions doctrine, which is a principle fashioned by the Court that provides that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech."³⁹ "Under th[e] Court's precedents, a funding condition violates the First Amendment when [it is] aimed at expression wholly unrelated to the purposes for which...