Equal Access for Military Recruiters

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

This case addresses the constitutionality of the Solomon Amendment, which “specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution [will] loose certain federal funds.” A group of law schools object to this law, insisting that their antidiscrimination policies limitation on access to military recruiters because of the law school’s protestation of the military’s policy towards homosexuals is speech or expression, protected by the First Amendment. Before addressing the First Amendment arguments individually, the Court states that Congress’ power to “provide for the common Defense,” “raise and support Armies,” and “’provide and maintain a Navy’ … is broad and sweeping.” The Court also asserts, more than once, that Congress would have the power to simply require that which the Solomon Amendment entices through funding.

First, the Court determines the proper reading of the law. The Court rejects the reading which would permit the law schools to apply their antidiscrimination policy to recruiters, so long as the schools applied the policy equally to all recruiters, because the Solomon Amendment does not focus on content, but rather looks to the result. The Court determines that the requirement that the military recruiters be entitled to access at least equal to that “provided to any other employer,” and the fact that this alternative reading would, contrary to the purpose behind the law’s recent revision, “make it easier for schools to keep military recruiters out altogether,” necessitate the reading that “in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.”

The opinion addresses the First Amendment on all fronts. As to speech per se the Court holds that the law neither requires not prohibits speech when requiring colleges to email scheduling information to the extent that the college does so for other recruiters, and holds that the compelled speech is “incidental to the Solomon Amendment’s regulation of conduct.” As far as compelled speech is connected to the requirement that the colleges host government speech, the Court distinguishes this case from the prohibition on compelled speech because this case does not affect the complaining speaker’s own message, since “nothing about recruiting suggests that the 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.”

In a footnote, the Court states that the law does not violate the First Amendment by requiring schools to subsidize Government speech because, as per the rulings of precedent, “[c]itizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech” (Johanns v. Livestock Marketing Assn) in which the dissent noted that the exception for compelled Governmental speech was relatively new.

As far as conduct is concerned, the Court finds that the law school’s conduct is expressive and thus protected by the First Amendment, not because of the conduct itself but by the speech that accompanies it. The Court also finds that the law passes the rule requiring that it advance a “substantial government interest” that would be achieved less effectively without the regulation, especially considering that whether or not other means might be adequate “is a judgment for Congress, not the courts.”

Regarding freedom of expressive association the Court holds that, as opposed the case of homosexuals in the boy scouts where the law forced the group to “accept members it does not desire,” “Recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students – not to become members of the law school’s expressive association.” The Court also holds that the Solomon Amendment does not make membership in the group less desirable.

This is the first opinion written by the new Chief Justice John Roberts.

Note: I completely ignored the spending power challenge - that the amount the universities would have to forfeit was unduly coercive - the idea being that after a great deal of time passes the grant could not be drastically conditioned without those conditions being coerced. Could this argument be based on a theory of reliance? That seems to run up against the competitive nature of politics.