RUMSFELD v. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS

Legal Principle at Issue

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.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

The Forum for Academic and Institutional Rights (FAIR) is an association of law schools and law faculties, whose members have policies opposing discrimination based on sexual orientation. They would like to restrict military recruiting on their campuses because they object to the Government’s policy on homosexuals in the military, but the Solomon Amendment — which provides that educational institutions denying military recruiters access equal to that provided other recruiters will lose certain federal funds — forces 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 thus Congress could regulate any expressive aspect of the military’s conduct under United States v. O'Brien, 391 U. S. 367. 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 other recruiters. Congress responded to this concern by codifying the DOD’s policy. 

Reversing the District Court’s judgment, the U.S. Court of Appeals for 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. The Third Circuit did not think that O’Brien applied, but nonetheless determined that, if the activities were expressive conduct rather than speech, the Solomon Amendment was also unconstitutional under that decision.