The First Amendment and military recruiting.

Few Supreme Court cases this year will attract more media attention than Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), which was decided on March 6. (1) The question it raised was whether the federal government violated the First Amendment rights of law schools, their faculty, and students by threatening to cut federal funds from universities whose law schools exclude military recruiters.

Law schools have long had policies that bar prospective employers who discriminate on the basis of race, gender, religion, or sexual orientation from the schools' career-services offices. And because federal law prohibits gays and lesbians from serving in the military, (2) most law schools have extended that ban to military recruiters. In response, the government passed a federal statute known as the Solomon Amendment, which denies virtually all federal funding to universities that prohibit military recruiters from using the career services available to other recruiters. (3)

In FAIR, the Court unanimously rejected the constitutional challenge to the Solomon Amendment. The interesting question is whether the decision will have implications beyond this unique, though important, situation.

The Solomon Amendment

In the 1970s, law schools began to adopt policies excluding employers who discriminate on the basis of race, gender, or religion from school facilities. In 1990, the American Association of Law Schools--the governing and accrediting body for law schools--voted unanimously to add sexual orientation to the list.

This meant the ban had to extend to the military because of its policy that specifically discriminates against gays and lesbians. (4) Military recruiters could interview students off campus or at campus Reserve Officers' Training Corps offices, but not in law school facilities.

In 1994, Rep. Gerald Solomon (R-N.Y.) proposed an amendment to the annual defense appropriations bill that would withhold Department of Defense (DOD) funding from schools that barred military recruiters. This proposal was adopted by both the House and Senate and signed into law.

In 2001, with the more conservative Bush administration in charge--and after the events of September 11--the DOD informed law schools that they had to allow military recruiters equal access to their employment facilities or face the loss of all federal funds. In the summer of 2004, Congress codified this policy in a statute that required schools to give military recruiters access "in a manner that is at least equal in quality and scope to the [degree of] access to campuses and to students that is provided to any other employer." (5)

FAIR, an association of law schools and law faculty, filed a lawsuit challenging the Solomon Amendment. The named plaintiffs also included three law students and two law professors--Sylvia Law from New York University and this author.

The U.S. District Court for New Jersey granted the government's motion to dismiss. (6) In November 2004, the Third Circuit reversed that ruling (7) on the principle that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech." (8) This doctrine, often called the "unconstitutional conditions" doctrine is firmly established. (9) It says, for example, that the government cannot condition welfare benefits on a requirement that recipients refrain from criticizing the government. Similarly, the court concluded, the government should not be able to condition federal funds on a requirement that law schools forgo their First Amendment rights.

The Third Circuit found that the Solomon Amendment violates the First Amendment in two major ways. First, it compels law schools to express a message with which they strongly disagree. The Supreme Court has long recognized that in addition to preventing suppression of speech, "the First Amendment may prevent the government from ... compelling individuals to express certain views." (10)

The Solomon Amendment does exactly that. It forces law schools to express a specific message, and to do so actively: for instance, to disseminate literature in student mailboxes; post job announcements on bulletin boards; maintain leaflets in binders for reference by students; publish job precis in printed catalogs; e-mail students about interview possibilities; arrange appointments for students; supply private meeting rooms for discussions with candidates; and reserve spots where Judge Advocate General's Corps banners can be posted.

The Third Circuit cited a second violation, finding that the Solomon Amendment infringed law schools' freedom of association rights. The Supreme Court has repeatedly held that groups with an "expressive message" may refuse to associate with other groups if doing so helps them further their message. (11) In this case, law schools have a message--they are against discrimination based on sexual orientation--and in order to further it, they may refuse association with those who practice that type of discrimination.

In a unanimous opinion written by Chief Justice John Roberts, the Supreme Court reversed the appellate ruling and upheld the Solomon Amendment, rejecting both grounds of the Third Circuit's decision. First, the Court denied that there was any compelled speech: "The Solomon Amendment does not require any ... expression by law schools.... There is nothing in this case approaching a government-mandated pledge or motto that the school must endorse." (12)

The Court said students would understand easily that their school was not endorsing the military or its exclusionary policies. "We have held that high school students can appreciate the difference between speech the school sponsors and speech the school permits because legally required to do so, pursuant to an equal-access policy," wrote Roberts. "Surely, students have not lost that ability by the time they get to law school." (13)

The Court stressed that law schools are still free to broadcast their own views. As the opinion notes, "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." (14)

The Court also rejected the second claim, noting that its earlier decisions in freedom-of-association cases involved the rights of groups to choose their own members. But the Solomon Amendment, the Court wrote, has nothing to do with membership: "Unlike the public accommodations law in [Boy Scouts of America v.] Dale, the Solomon Amendment does not force a law school 'to accept members it does not desire.'" (15) The Court again emphasized that there is no First Amendment violation because "students and faculty are free to associate to voice their disapproval of the military's message." (16)

Impact and implications

On one hand, the Court's decision in FAIR is a significant departure from precedents and a narrowing of First Amendment protections. Never before has the Supreme Court held that the government can compel speech as long as the speaker can disavow the compelled message later.

In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Court ruled unanimously that forcing Boston parade organizers to accept participation by the Irish-American Gay, Lesbian, and Bisexual Group violated the organizers' First Amendment rights. (17) The compelled speech was not excused simply because the organizers could have spoken out against the group.

In Pacific Gas & Electric Co. v. Public Utility Commission of California, the Court held that a state agency cannot require a utility company to include a third-party newsletter in its billing envelope. (18) Again, the compelled speech was not allowed just because the utility company could still disagree with the newsletter's content.

And never before has the Supreme Court limited freedom-of-association cases to membership. In Dale, the Court found that the government cannot compel association in a manner that is inconsistent with a group's expressive message. But the Solomon Amendment does just that.

On the other hand, FAIR may have a narrow impact. There is a long tradition in American history of deference to the military, especially in wartime. (19) And cases like Dale and Hurley reflect a Court that often has not been sensitive to discrimination against gays and lesbians. These factors may limit how much the Court uses FAIR as precedent in the future.

Notes

(1.) 126S. Ct. 1297 (2006).

(2.) 10 U.S.C. [section] 654 (2000).

(3.) 10 U.S.C. [section] 983 (2000).

(4.) 10 U.S.C. [section]654.

(5.) 10 U.S.C. [section] 983 (b) (2000 & Supp. 2005).

(6.) 291 F. Supp. 2d 269 (D.N.J. 2003).

(7.) 390 F.3d 219 (3d Cir. 2004).

(8.) Perry v. Sindermann, 408 U.S. 593, 597 (1972).

(9.) See, e.g., FCC v. League of Women Voters, 468 U.S. 364 (1984); Speiser v. Randall, 357 U.S. 513 (1958).

(10.) United States v. United Foods, Inc., 533 U.S. 405,410 (2001).

(11.) See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

(12.) 126 S. Ct. 1297, 1308.

(13.) Id. at 1310.

(14.) Id. at 1307.

(15.) Id. at 1312 (quoting Roberts v. United States Jaycees, 468 U.S. 609,623 (1984)).

(16.) Id. at 1313.

(17.) 515 U.S. 557 (1995).

(18.) 475 U.S. 1 (1986).

(19.) See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (approving the evacuation of people of Japanese ancestry during World War II).

ERWIN CHEMERINSKY is the Alston and Bird Professor of Law and Political Science at Duke University.