Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

PETITIONER: Donald H. Rumsfeld, Secretary of Defense, et al.
RESPONDENT: Forum for Academic and Institutional Rights, Inc., et al.
LOCATION: Board of Immigration Appeals

DOCKET NO.: 04-1152
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 547 US 47 (2006)
GRANTED: May 02, 2005
ARGUED: Dec 06, 2005
DECIDED: Mar 06, 2006

ADVOCATES:
E. Joshua Rosenkranz - argued the cause for Respondents
Paul D. Clement - argued the cause for Petitioners

Facts of the case

The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military recruiters the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools' First Amendment rights to expressive association by requiring them to assist in military recruitment. The district court rejected the suit, but a Third Court of Appeals panel reversed. It held that, while the schools still had the right to forfeit funds so as to avoid unwanted endorsement of military policy under the amendment, forcing the schools to make such a decision was unconstitutional. Congress could not require them to forfeit a constitutional right in order to receive federal funds.

Question

Does the Solomon Amendment, which witholds certain federal funds from colleges and universities that restrict the access of military recruiters to students, violate the First Amendment?

Media for Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Audio Transcription for Oral Argument - December 06, 2005 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

Audio Transcription for Opinion Announcement - March 06, 2006 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

John G. Roberts, Jr.:

I have the opinion this morning in No. 04-1152, Rumsfeld versus Forum for Academic and Institutional Rights.

The Forum for Academic and Institutional Rights, which goes by the acronym FAIR, is an association of law schools and law faculties.

Its members have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation.

According to FAIR, the Government’s policy on homosexuals in the military violates FAIR’s nondiscrimination policies.

As a result, law-school members of FAIR began limiting access to their campuses and students for military recruiters.

Congress responded by enacting the Solomon Amendment.

Under this statute, if any part of a university, like a law school, denies military recruiters access equal to that provided other recruiters, the entire university loses certain federal funding.

The law school sued, alleging that the Solomon Amendment infringes their First Amendment rights of free speech and association.

The District Court refused to block enforcement of the Solomon Amendment because, in its view, the law schools were not likely to win on their First Amendment claims.

The District Court thought the Solomon Amendment regulated conduct, not speech, and concluded that the First Amendment was not violated.

The Court of Appeals reversed, holding that the Solomon Amendment was unconstitutional, because it forced law schools to choose between surrendering First Amendment rights and losing federal funding.

The Court thought the statute’s equal-access requirement did regulate the law school’s speech and thus violated the school’s freedom of speech and association.

We agreed to review this decision.

The Solomon Amendment regulates conduct, not speech.

It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.

Law schools remain free to express whatever views they may have on the Government’s policy on homosexuals in the military, all the while retaining eligibility for federal funding.

Nevertheless, the Court of Appeals concluded that the Solomon Amendment violates law schools’ freedom of speech in a number of ways.

First, in assisting military recruiters, law schools provide some services, such as sending emails and distributing flyers, that clearly do involve speech.

The Court of Appeals held that in supplying these services, law schools are compelled to speak the Government’s message.

This sort of recruiting assistance, however, is a far cry from the compelled speech we have previously found to be unconstitutional.

Compelling a law school that sends scheduling emails for other recruiters to send one for a military recruiter is simply not the same as the compelled speech in our prior cases, for example, forcing a student to pledge allegiance or forcing a Jehovah’s Witness to display the motto “Live Free or Die” on his automobile license plate.

The compelled speech here is plainly incidental to the regulation of conduct, and that has never been considered an abridgement of free speech.

Second, military recruiters are, to some extent, speaking while they are in campus.

The Court of Appeals held that by forcing law schools to permit the military on campus to express its message, the Solomon Amendment unconstitutionally requires law schools to host or accommodate the military speech.

When we have found a compelled speech violation, however, it is been because the complaining speaker’s own message was affected by the speech it was forced to accommodate.

In this case, accommodating the military’s message does not affect the law school’s speech, because the schools are not speaking when they simply host recruiting interviews and receptions.

Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.

We have held that high-school students can appreciate the difference between speech their school sponsors and speech it permits because it is legally required to do so.

Surely students have not lost that ability by the time they get to law school.

Third, the Court of Appeals thought that if the Solomon Amendment regulates conduct, this conduct is nonetheless expressive, and regulating it infringes law schools’ right to engage in expressive conduct.