Rumsfeld v. Forum, 547 U.S. 47; 126 S. Ct. 1297; 164 L. Ed. 2d 156 (2006)

Facts—The Forum for Academic and Institutional Rights, Inc. (FAIR), an association of law schools and law faculties, challenged the Solomon Amendment, which tied federal funding to colleges and universities (excepting those that were pacifist) to giving military recruiters equal access to their facilities, as violations of the institutions’ First Amendment rights of speech and association. A U.S. district court rejected this claim, but the Third Circuit reversed and issued an injunction against enforcement of the Solomon Amendment.

Question—Does enforcement of the Solomon Amendment, conditioning federal aid to schools on their provision of equal access to military recruiters, violate the First Amendment rights of speech and association of colleges and universities?

Decision—No.

Reasons—C.J. Roberts (8–0, J. Alito not participating). Congress adopted the Solomon Amendment when colleges and universities, who disagreed with the military’s exclusion of openly gay recruits, sought to restrict the access of military recruiters. “The Solomon Amendment does not focus on the content of a school’s recruiting policy.      Instead, it looks to the result achieved by the policy.” The Court generally gives deference to congressional decisions tied to its power to provide for the national defense. Here Congress has exercised this power through its spending clause. Deference should arguably be even greater since “universities are free to decline the federal funds.” “The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.” “[T]he 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.” Just because Congress prevents participating schools from discriminat- ing against military recruiters does not mean that it is telling them what they must say. This is not, therefore, a case of “compelled speech.” “In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive.” Moreover, the burdens on conduct do not violate the test established in United States v. O’Brien (1968). “The expressive component of a law school’s action is not created by the conduct itself but by the speech that accompanies it.” Just as the Solomon Amendment does not violate freedom of speech, so too it does not violate freedom of association. By definition, recruiters are “outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.” “Students and faculty are free to associate to voice their disapproval of the military’s message.” In short, “FAIR has attempted to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect.”