Rumsfeld v. Forum for Academic and Institutional Rights (2006) concerned a constitutional challenge to the Solomon Amendment, a modification in a federal statute that required the U.S. Department of Defense (DoD) to deny funding to institutions of higher education that refused to give military representatives access and assistance for recruiting purposes. In a unanimous opinion, with Justice Alito not participating, the Supreme Court held that the Solomon Amendment did not impose an unconstitutional condition on the receipt of federal funds, did not compel educational institutions to speak the government’s message, did not regulate inherently expressive conduct, and did not violate the plaintiffs’ First Amendment freedom of association. In light of the implications that Rumsfeld raises for colleges and universities, this entry reviews the case in detail.
Facts of the Case
When some law schools began restricting the access of military recruiters to their students because of disagreement with the federal government’s “don’t ask, don’t tell” policy on homosexuals in the military, Congress responded in 1994 by adding the Solomon Amendment to the Department of Defense’s appropriations bill, with further changes to the amendment in 1997, 1999, and 2004. Named after its sponsor, New York Representative Gerald B. H. Solomon, the amendment denied funds to institutions of higher education that did not allow military recruiters access to their campuses equal to that accorded other recruiters or that prohibited or in effect prevented students from enrolling in reserve military units on their campuses. The prohibition applied to funds distributed through five different federal agencies.
After September 11, 2001, the Department of Defense began applying an informal policy of requiring access equal to what other recruiters received. The DoD apparently anticipated that this approach would lead law schools to suspend their policies banning discrimination related to sexual orientation and allow access for military recruitment. In September 2003, an association of law schools and law faculties functioning under the title Forum for Academic and Institutional Rights (FAIR) filed suit in a federal trial court in New Jersey, seeking to enjoin the enforcement of the Solomon Amendment. All the members of the association had adopted policies prohibiting discrimination based on sexual orientation. The court denied FAIR’s request for a preliminary injunction, finding that the plaintiffs were unlikely to prevail on the merits of their claims that the amendment infringed their First Amendment free speech and association rights to oppose sexual orientation discrimination, constituted viewpoint discrimination, and was unconstitutionally vague. On appeal, the Third Circuit reversed in a two-toone judgment, holding that plaintiffs had a reasonable likelihood of success, and remanded the case to the trial court with order to grant a preliminary injunction.
The Supreme Court’s Ruling
On further review, a unanimous Supreme Court, in an opinion authored by Chief Justice Roberts, reversed the judgment of the Third Circuit. The Court reasoned that Congress could require law schools to provide equal access to military recruiters without violating their First Amendment speech and expressive association rights. As to the authority of Congress to enact and enforce the Solomon Amendment, the Court observed that the First Amendment did not prohibit Congress from imposing directly the amendment’s access requirement on law schools.
In terms of compliance with the Solomon Amendment’s equal access requirement, the law schools had argued that they could comply with the law by denying access equally to all recruiters who violated their sexual orientation nondiscrimination policies, not just military recruiters. However, the Supreme Court rejected that position in determining that because the amendment focused not on the content of policies but rather on the results they achieved, the law schools could not be in compliance if the enforcement of their policies resulted in a greater level of access for other recruiters than for those from the military.
Turning to the law schools’ most substantial claim—that enforcement of the Solomon Amendment violated their rights of speech and expressive association, the Supreme Court noted that the amendment regulated conduct, not speech. Being required to provide the same services for military recruiters as for others, including sending e-mails to students about the presence of recruiters on campus, was not, according to the Court, the kind of compelled speech that the Court addressed in West Virginia Board of Education v. Barnette (1943). In that case, the Court held that students could not be required to pledge allegiance to the U.S. flag in violation of their religious beliefs as Jehovah’s Witnesses. Roberts explained that to equate a requirement that law schools send e-mails on behalf of all recruiters, including military ones, with compelling students to violate their sincerely held religious beliefs trivialized the freedom protected in Barnette.
At the same time, Roberts acknowledged that the government cannot compel speech that changes a complaining party’s own expressive message, as the Court had decided in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995). In Hurley, the Court held that officials in the city of Boston who sought to enforce a sexual orientation nondiscrimination policy by denying a permit to the organizers of the St. Patrick’s Day parade violated the organizers’ rights to free speech. The Court pointed out that such a result would have violated the First Amendment, because requiring the parade organizers to allow participation by gay/lesbian/bisexual groups seeking to project their own message about sexual orientation would have forced the organizers to accommodate a message different from the parade’s purpose of recognizing the Irish tradition. The Court was satisfied that no such change of message occurred in Rumsfeld, because nothing in the recruiting process would suggest that that the law schools were in agreement with the expressive views of the recruiters. In fact, the Court added that the amendment in no way restricted the freedom of law school officials and faculty members to express their own views about the military’s policies.
In rounding out its analysis, the Supreme Court rejected any comparison of Rumsfeld to Boy Scouts of America v. Dale (2000), wherein it agreed that a state law violated the right to expressive association of the Boy Scouts, because it required the organization to accept a homosexual scoutmaster. The Court maintained that even though military recruiters might interact with law school personnel, the recruiters were not part of the schools, and thus the Solomon Amendment did not violate the First Amendment.
Rumsfeld stands out because it is at the intersection of the relationship between the power of the federal government to impose conditions of the receipt of aid that it provides and the First Amendment and academic freedom rights of faculty members in law schools and other parts of campus communities. Insofar as the Supreme Court upheld the authority of Congress to impose conditions on the receipt of federal funds, it opens the door to other potential conflicts in this contentious arena.
Ralph D. Mawdsley
van Dalen, M. (2007). Rumsfeld v. FAIR, A free speech setback or strategic victory for the military? Journal of the Legal Profession, 31, 75–96.
Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006).
Solomon Amendment, 10 U.S.C. § 983.
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).