Did the Court of Appeals err in ruling that the Solomon Amendment's equal access condition on federal funding violates the First Amendment based on the fact that the Solomon Amendment burdens the right of educational institutions to engage in expressive association and forces law schools to propagate a message of discrimination against homosexuals with which they disagree?
Under the Solomon Amendment, law schools that receive federal funding are forced to provide the same access to career placement services to military recruiters that they provide to other employers. This requirement conflicts with most law schools' policies of non-discrimination that withhold career placement services from employers who exclude employees on the basis of race, gender, religion or sexual orientation. The Forum for Academic and Institutional Rights (“FAIR”) has challenged the Solomon Amendment on two grounds. First, they argue that the Amendment is an unconstitutional condition that infringes their freedom of speech. Second, FAIR argues that law schools are “expressive associations” whose right to free speech and dissemination of a chosen message is impaired by the forced accommodation of military recruiters on campus. The Court of Appeals, in ruling for FAIR, held that the Solomon Amendment unconstitutionally impairs expressive conduct and that the Government has not shown a compelling interest that justifies denying this freedom. The case is significant because it will determine whether, specifically, law schools are able to bar military recruiters from campus without losing federal funding, and, more broadly, whether certain associations may qualify for federal funding but remain constitutionally protected from disseminating a message with which they do not agree.
Questions as Framed for the Court by the Parties
The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.
Since 1990, the American Association of Law Schools (“AALS”) has required its members to withhold placement assistance or use of the schools' facilities from employers who discriminate on the basis of sexual orientation. AALS believes that the military violates this policy as a result of the military's “don't ask, don't tell” policy. See 10 U.S.C. § 654. As a result, some law schools refused to provide access to their facilities and assistance to military recruiters. In 1994, Congress enacted the Solomon Amendment (10 U.S.C.§ 983), withholding Department of Defense funding from any university that denied the military access to its campuses.
Initially, the AALS excused members from complying with the policy as long as the school took steps to address the impact of military recruiting on the student body. Many law schools compromised by allowing military recruiters some access to campus but not the full use of career services or their offices. In 1997, Congress amended the Solomon Amendment to include denial of funds administered by other federal agencies including the Department of Education. Initially, the Department of Defense only penalized schools that prevented the military from gaining any access to campuses or students. However, after September 11, 2001, the Department of Defense informed schools that they would lose federal funding unless they provided military recruiters exactly the same access to career placement services as other employers enjoyed. Schools thereafter allowed military recruiters full access to career services.
In September 2003, a group of 30 law schools, (The Forum for Academic and Institutional Rights – “FAIR”) sued the Department of Defense and the other federal agencies whose funds are implicated by the Solomon Amendment, seeking, on constitutional grounds, a preliminary injunction enjoining enforcement of the Solomon Amendment and the policy regarding equal access to schools' career services facilities. The Government defendants moved to dismiss for lack of standing. The District Court in New Jersey subsequently denied both the motion to dismiss and FAIR's motion for preliminary injunction. In November 2004, in a 2-1 decision, the Court of Appeals for the Third Circuit reversed the ruling and held that the Solomon Amendment unconstitutionally burdened FAIR's First Amendment rights. In May 2005, the Supreme Court granted certiorari to review the Court of Appeals' decision.
FAIR seeks a preliminary injunction against enforcement of the Solomon Amendment, which denies funds to “an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that the institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents the Secretary of a military department É from gaining entry to campuses, or access to students É for purposes of military recruiting.” 10 U.S.C. § 983(b)(2005). To obtain a preliminary injunction, FAIR must establish: 1) a reasonable likelihood of success on the merits, 2) irreparable harm absent the injunction, 3) that the harm to FAIR absent the injunction outweighs the harm to the government of granting it, and 4) that the injunction serves the public interest. Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002).
FAIR maintains formal nondiscrimination policies withholds career placement services from employers who exclude applicants based on sexual orientation, among other factors. The military prohibits open, practicing gays from serving in the armed forces. 10 U.S.C. 654(b)(2005). FAIR contends that the Solomon Amendment is an “unconstitutional condition” because it compromises the law schools' First Amendment rights by forcing them to convey a message other than their own, or lose federal funding. Perry, 408 U.S. at 597. Essentially, this case will turn on the underlying nature of the condition. If the funding is conditioned on the schools doing something that congress could not directly compel them to do, then the condition is invalid. The Third Circuit succinctly explained, “if the law schools' compliance with the Solomon Amendment compromises their First Amendment rights, the statute is an unconstitutional condition.” Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219, 229 (3d Cir. 2004).
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. The Supreme Court will find that the Solomon Amendment abridges the freedom of speech if it interferes with expressive association or compels speech. A violation under either of these standards means that the Solomon Amendment is unconstitutional unless the government can establish that the statute withstands strict scrutiny. To pass the strict scrutiny test, the Solomon Amendment must be narrowly tailored to serve a compelling government interest and use the least restrictive means of promoting the government's asserted interest. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
Alternatively, the Supreme Court may find that the Solomon Amendment neither interferes with expressive association nor compels speech. Instead, the Court may find that the law schools' interest in restricting access to campus to military recruiters because of their hiring policies is merely “expressive conduct,” in which case the Court would apply the intermediate scrutiny test. See United States v. O'Brien, 391 U.S. 367 (1968). To satisfy intermediate scrutiny, the government need only show that the government action furthers an important government interest, which is no more restrictive to speech “than is essential to the furtherance of that interest.” Id. This is a much easier bar to pass than the strict scrutiny's compelling interest test. The distinction between speech and conduct is crucial because the government is limited in its ability to regulate speech, but it has more flexibility to regulate expressive conduct.
FAIR first argues that the Solomon Amendment significantly affects law schools' ability to communicate that discrimination on the basis of sexual orientation is wrong. The Court of Appeals, which granted the preliminary injunction in favor of FAIR, agreed by analogizing to BSA v. Dale, 530 U.S. 640 (2000). See FAIR, 390 F.3d at 230-31. In Dale, the Supreme Court held that forcing the Boy Scouts to accept an openly gay assistant scoutmaster would impair the Boy Scouts' expression and “significantly burden the Boy Scouts' desire to not Ôpromote homosexual conduct as a legitimate form of behavior.'” BSA v. Dale, 530 U.S. 640, 653 (2000) (citation omitted).
The District Court, however, held that Dale is distinguishable from this case. See FAIR v. Rumsfeld, 291 F.Supp.2d 269, 305 (2003). Military recruiters, the court opined, are simply periodic visitors, not members of the law school community, whereas a scoutmaster is a member of the Boy Scouts. See id. Thus, the District Court ruled that because the law schools' policies for their own membership were not at issue, military recruiters do little to compromise the free speech and expressive association rights of the law schools. See id.
FAIR also argues that the requirement to admit and assist military recruiters compels the law schools to express a particular ideological message. The Court of Appeals agreed, stating that by directly providing access to campuses for military recruiters who tell law students that openly gay applicants may not serve, the Solomon Amendment requires the law schools to allow an objectionable message contrary to their beliefs. FAIR, 390 F.3d at 239. Thus, the court held that the Solomon Amendment violates the doctrine of compelled speech by forcing schools to propagate, accommodate, and subsidize the speech of military recruiting. See id. at 240.
The District Court rejected FAIR's argument and held that the Solomon Amendment does not compel law schools to say anything. See FAIR, 291 F. Supp. 2d at 308, 309. That is, the law schools' actions in assisting military recruiters, in the District Court's opinion, are “insufficiently imbued with elements of communication to require the protection of the First Amendment.” Id. The court further opined that assisting military recruiters is not an “obvious endorsement” by the law schools of the military's point of view because “law schools can effectively disclaim any recruiting message and can easily distance themselves ideologically from the military recruiters.” Id. at 310.
If the Supreme Court decides that the Solomon Amendment impairs the law schools' First Amendment rights by directly burdening their expressive association or compelling them to propagate, accommodate, and subsidize the military's recruiting message against their will, the statute could still be valid if it is a narrowly tailored means of serving a compelling state interest. The Court of Appeals found that the Solomon Amendment does not survive strict scrutiny review because the government has not demonstrated that it cannot recruit effectively by less speech-restrictive means. See FAIR, 390 F.3d at 235 (stating, “[u]nlike a typical employer, the military has ample resources to recruit through alternative means”). The Court of Appeals stated that other recruiting methods may yield acceptable results and that the Solomon Amendment, which has generated much ill will toward the military on law school campuses, may actually impede recruitment. See id.
The District Court held that strict scrutiny need not apply because the Solomon Amendment addresses the conduct of an educational institution's denial of equal access to military recruiters. Under O'Brien, a regulation of conduct that imposes an incidental burden on expression is constitutional as long as it furthers a substantial governmental interest that is “unrelated to the suppression of free expression” that would be achieved less effectively absent the regulation. 391 U.S. at 377. The government argues that the its interest in recruiting the most qualified men and women for military service is entirely compelling (and, therefore, at least substantial) and unrelated to the suppression of expression. Moreover, their recruiting mission would be much less effective if military recruiters are banned from access to campuses and students unlike other prospective, competing employers.
Also implicated in this case is the Spending Clause, which confers on Congress the power to “provide for the common defense and general welfare of the United States.” Art. I, § 8, Cl. 1. Article I of the Constitution also vests Congress with the power “to raise and support” military forces for the defense of the United States. Art. I, § 8, Cls. 12-13. The government contends that denying federal funding to higher education institutions that prevent on-campus military recruiting is a constitutional exercise of Congress' spending power and obligation to raise armies. The defense of the United States depends on the ability of the armed forces to attract men and women who have the skills needed for the Nation's defense. An educational institution that does not wish to associate with the United States' military recruiters, the government argues, may simply decline to seek funding from the United States.
The Court of Appeals, however, held that the Spending Clause did not apply here because the Solomon Amendment does not create a spending program, but merely imposes a penalty – the loss of general funds. FAIR, 390 F.3d at 229. Furthermore, the Spending Clause cannot apply where it clashes with First Amendment rights. FAIR, 291 F. Supp. 2d at 299.
The decision in Rumsfeld v. FAIR will significantly impact both the military and educational institutions such as law schools. If the Court rules that the Solomon Amendment is constitutional, law schools will have to choose between receiving funding and their ability to bar access to recruiters whose policies conflict with their standards for other recruiters. Such a ruling would require law schools, already facing difficult budgetary constraints, to weigh their free speech interests against the benefit of receiving federal funds. Additionally, if the Solomon Amendment is ruled unconstitutional, the military may have to reconsider its recruiting and discrimination policies. If the military is not entitled to the same access to university campuses as other employers, it will have to find other efficient means of recruiting qualified candidates. This limitation on the military's ability to recruit will exacerbate its current shortfalls in recruiting qualified candidates.
FAIR argues that the Solomon Amendment is an “unconstitutional condition.” FAIR v. Rumsfeld 291 F. Supp. 2d. 269 (2003). Under the unconstitutional conditions doctrine, 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.” Perry v. Sindermann, 408 U.S. 593, 597 (1972). The District Court held that the Solomon Amendment does not violate law schools' First Amendment rights. The court reasoned that the Solomon Amendment furthers the important government interest in raising a volunteer military, that the military recruitment effort will be less effective if schools are allowed to deny military recruiters equal access to campuses and their students, and that the Solomon Amendment does not seek to suppress ideas. Supporters of the Solomon Amendment might argue that it is hypocritical for private universities to accept federal funding in the form of taxpayer dollars and then refuse to support the military that protects them. This is especially true given the overwhelming support for the legislation, as in the case of the Solomon Amendment.
If the Supreme Court affirms the District Court's reasoning, it will have a profound impact on free speech because of the implication that even where free speech is compromised, there are certain governmental interests that are simply more important. Alternatively, if the Solomon Amendment is ruled unconstitutional, the Supreme Court will be sending a message that even the country's interest of raising a military is subject to certain constraints, and the interests of free speech in certain contexts will outweigh that interest if the military's means of recruiting advance too far on the freedom of speech. There is little doubt that many who feel that the military's recruiting policy itself is unconstitutional on equal protection grounds will join ranks with the free speech advocates in this case.
In addition to the specific parties to the case, the outcome of the case will affect many others concerned about their constitutional rights of speech and expression. If the Supreme Court rules that the Solomon Amendment is constitutional, it will severely restrict the ability of schools and other institutions to express their own ideas and policies. Such a result could also encourage further decisions restricting speech. If the Solomon Amendment is ruled unconstitutional, law schools will have the ability to promote messages of their own, without regard to military recruiters. Their federal funding will be protected and they will not have to choose between the loss of federal funds and the message of nondiscrimination that they wish to disseminate. The Department of Defense itself actually objected to the 1994 amendment to the Solomon Amendment on the grounds that withholding funds from universities could harm research efforts in defense. This particular objection is relevant in a wider context because if law schools are forced to choose between federal funding and disseminating their own messages or policies, they may decide that their polices are more important. Losing federal funding will mean that there could be cutbacks to research projects in addition to defense. If such funds were not reinvested elsewhere in the educational framework, these cuts could mean the loss of important scientific and research advances for the United States. According to Cornell Law School professor Gary Simson, “that amendment strikes at the heart of academic freedom. By threatening to withdraw federal funding from universities that do not treat military recruiters the same as any other recruiters, the amendment compels universities to choose between losing longstanding, essential funding and acquiescing publicly in the military's discriminatory hiring policies with regard to gays and lesbians. This is a choice that universities cannot constitutionally be forced to make.”
In this case, the Supreme Court must rule on the constitutionality of the Solomon Amendment. FAIR contends that the Solomon Amendment violates the First Amendment rights of its members by conditioning federal funds to universities on its members' support of military recruitment on campus. The government argues that the Solomon Amendment is necessary for effective recruitment, which is essential to sustain an all-volunteer military. Essentially, this case is a struggle between Congress's power of the purse and academic freedom. If the Court rules that the Solomon Amendment is constitutional, law schools will have to choose between receiving funding and their ability to bar access to recruiters whose policies are repugnant to their normal standards. If the Supreme Court rules that the Solomon Amendment is unconstitutional, the military may have to rethink its means of recruiting, or at the extreme and perhaps the ultimate desire of many constituents to this case, their hiring policy.
Written by: Laura Chang & Kelly McRobie