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

    Citation. 547 U.S. 47 (2006)

    Brief Fact Summary.  Law schools barred access to military recruiters citing the military forces’ known policy of debarring an avowed homosexual from entering military service.

    Synopsis of Rule of Law. The Solomon Amendment is not a violation of the freedom of speech or of association as far as law schools are concerned, when it bars the grant of federal educational funds to law schools which do not grant equal access to military recruiters.

    Facts. The Forum for Academic and Institutional Rights, Inc.(FAIR)  (P) is an association of law schools in the U.S.which decided to bar access to their schools by military recruiters , in protest against the U.S. military’s policy of not allowing openly homosexual persons to enter military service. The Solomon Amendment, 10 U.S.C. 983, was enacted by Congress in response to this action. It provided for loss of federal funding to an entire educational institution if any part of the institution refused or failed to provide equal access to military recruiters, as to all other recruiters. FAIR filed against the Amendment on the grounds that it violated the rights of the law schools in regard to free speech and association. The decision was in favor of the government (D) but on appeal the ruling was reversed. The Supreme Court granted review.

    Issue. Does the Solomon Amendment which makes federal funding of law schools  conditional on the institution granting free access to military recruiters violate the freedom of speech and of association of law schools in the U.S.?

    Held. (Roberts, C.J.) No. The Solomon Amendment does not in any way violate the freedoms of speech or association when it makes federal funding of U.S. law schools conditional on their allowing free access to military recruiters. This law was passed by Congress under the Spending Clause and not in exercise of its military authority. However, this is of no moment in the face of the need for the judiciary to give all respect to any law that advances military recruiting. A condition  that advances this aim is lawful under the First Amendment even if imposed under the military authority of Congress, and in such a case it is clearly lawful under the indirect authority of the Spending Clause. The statute does not impair the power of the law schools to issue any speech concerning their views on present military policy, but only prevents unfair action which would bar equal access to military recruiters. The necessity to provide notices about the visits of such recruiters and to allow such recruiters to speak about their goals does not restrict the freedom of the law schools to speak as they please on this issue. The message of the law schools is not forced to be that of the military by this statute. Being forced to accommodate an opposing speech to some extent does not mean the plaintiff’s own speech is impaired, distinguishing this case from earlier cases. Another difference is that that the statute in question does not seek to compel action in violation of the First Amendment. Still more, the restriction on military recruiters by the law schools does not by itself express the intention of the school, which is not the case in an incident of burning the American flag, for instance. The expression behind forbidding the entry of military recruiters by the law schools can be understood only in the context of other speech by the law schools which goes along with this action. The object of the regulation being to achieve a substantial government interest, the amendment does not impose an inappropriate restriction on speech since in its absence the interest of the government would be harmed to a significant extent. Lastly, there is no limitation on the freedom of association since the law does not force the entry of members who express an opposing point of view into the schools themselves. The ruling is reversed and the case remanded.

    Dissent. N/A

    Concurrence. N/A

    Discussion. The Court was unanimous in ruling that the Solomon Amendment in no way violates the First Amendment rights to free speech and association. It did not compel the law schools to strongly express the government’s speech as in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), but only made a certain form of non-expressive speech mandatory. This does not amount to infringement upon freedom of speech. The fact that the statute did not seek to force the admission of military recruiters into the law schools as members prevented FAIR’s claim in respect of freedom of association as well.


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