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

Brief Fact Summary.

Law schools restricted the access of military recruiters to their students because of the Government’s policy on homosexuals in the military. Congress responded by enacting the Solomon Amendment, which provides that if any higher institution, including law schools, denies military recruiters access equal to that provided to other recruiters, such institution would not be entitled to certain federal funds. The law schools sued, alleging the Solomon Amendment violated the First Amendment freedoms of speech and association.

Synopsis of Rule of Law.

Under the Constitution, Congress has the power to “provide for the common Defense,” “to raise and support Armies,” and “to provide and maintain a Navy.” Congressional authority in this area is “broad and sweeping.”

Facts.

Respondent Forum for Academic and Institutional Rights, Inc. is an association of law schools and law faculties. They wanted to restrict the access of military recruiters on their campuses because of their disagreement with the Congress’ policy toward homosexuals in the military. The Solomon Amendment, enacted by Congress, forces institutions to accept military recruiters’ access or otherwise lose federal funds.

Issue.

Does the Solomon Amendment, which requires an institution to offer military recruiters the same access on its campus and students equal to that provided to other recruiters or else lose specified federal fund, infringe the First Amendment freedoms of speech and association?

Held.

No, because the Solomon Amendment does not limit what law schools may speak of or require them to say anything. Law schools are in no way restricted by the statute from expressing whatever views they have on the military’s policy while remaining eligible for federal funds. The Solomon Amendment regulates conduct, not speech and therefore, it does not violate the First Amendment freedoms of speech and association.

Discussion.

The Solomon Amendment does not dictate the content of the speech that is only “compelled” if the law school provides such speech for other recruiters. There exists no government-mandated pledge or motto that the school must endorse. The compelled speech, which the law schools allege to be unconstitutional, is incidental to the Solomon Amendment’s regulation of conduct and it does not constitute an abridgment of freedom of speech merely because the conduct was in part initiated by means of language.

Moreover, accommodating the military’s messages on homosexuals does not influence the law school’s speech, because they are not speaking when they host interviews and recruiting receptions. The primary purpose of allowing recruits to campuses is to help students obtain jobs. Law schools recruiting services lack expressive quality. Further, the conduct regulated by the Solomon Amendment is not inherently expressive. A third party watching military recruiters interviewing outside law schools would not know whether the law school is expressing its disapproval of the military.