Military Recruiting and the Solomon Amendment: The Supreme Court Ruling in Rumsfeld v. FAIR
CRS Report for Congress
Military Recruiting and the Solomon
Amendment: The Supreme Court Ruling in
Rumsfeld v. FAIR
Charles V. Dale
Legislative Attorney
American Law Division
Summary
In recent years, many academic institutions have enacted rules that protect
homosexuals from discrimination on campus. As a result, colleges, universities, and
even high schools have sought to bar military recruiters from their campuses and/or to
eliminate Reserve Officer Training Corps (ROTC) programs on campus because of
“Don’t Ask, Don’t Tell,” the DOD policy excluding known or admitted homosexuals
from military service. At the same time, federal legislation has been enacted to prevent
the government from funding higher educational institutions that block military
recruiters from campus. On March 6, 2006, the Supreme Court reversed a federal
appeals court ruling in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR).
In so doing, eight Justices upheld the constitutionality of the Solomon Amendment,
which forbids most forms of federal aid to higher educational institutions that deny
military recruiters access to students equal to that provided other employers.
The Solomon Amendment
Under the Solomon Amendment, as amended, specified federal funds may not be
provided to an “institution of higher education,” or “subelement” of such an institution,
if the institution or subelement “has a policy or practice” that “either prohibits, or in effect
prevents” military recruiters from gaining access to campuses or students “in a manner
that is at least equal in quality and scope to the access to campuses and to students that
is provided to any other employer.”1 The Solomon Amendment applies to all institutions
of higher education except ones with “a longstanding policy of pacifism based on
historical religious affiliation.”2 The act governs all funds made available through the
DOD, the Department of Homeland Security, the Department of Health and Human
1 10 U.S.C. § 983(b)(1).
2 Id. at § 983(c)(2).
Congressional Research Service ˜ The Library of Congress
Services, the Central Intelligence Agency, and other enumerated agencies.3 It does not
apply to funds provided to educational institutions or individuals “solely for student
financial assistance, related administrative costs, or costs associated with attendance.”4
Constitutional Challenge to the Solomon Amendment
On March 6, 2006 the U.S. Supreme Court reversed a Third Circuit Court of Appeals
decision in Rumsfeld v. Forum for Academic and Institutional Rights (FAIR).5 By an 8
to 0 vote, the High Court unanimously rejected arguments by the Forum for Academic
and Individual Rights, an association of law schools and professors, that it was
unconstitutional for the federal government to condition university funding on
compliance with the Solomon Amendment. The universities objected that because of the
military’s “don’t ask, don’t tell” policy, permitting recruiters on campus would undermine
their policies against discrimination and that the federal law therefore violated their free
speech rights. A divided Third Circuit panel agreed that the Solomon Amendment had
compelled the law schools to convey messages of support for the military’s policy of
discriminatory exclusion. In addition, the appellate panel relied on a 2000 Supreme Court
decision, Dale v. Boy Scouts of America6 — which held that the Boy Scouts have an
expressive right to exclude gay scoutmasters — for the converse proposition that the
nation’s universities have a right to “expressive association” in opposing military
recruiters where there is a conflict between the DOD stance on sexual orientation and
academic nondiscrimination policies.
DOD appealed the Third Circuit’s decision to the Supreme Court. FAIR’s core
argument was that the Solomon Amendment amounts to an “unconstitutional condition”
because it exacts a penalty for the law schools’ engaging in First Amendment expressive
conduct. While the government may impose reasonable conditions on the receipt of
federal largesse, respondents contended, it “cannot attach strings to a benefit to ‘produce
a result which [it] could not command directly.’”7 When a law school violates the equal
access rule, the government threatens loss of funding not only to the law school but to the
entire university. Thus, they claimed, requiring equal access forces laws schools to
“propagate, accommodate, [or] subsidize an unwanted message.”8 The government
countered by pointing to the plenary powers of Congress to “raise and support armies”
and to “provide for the common Defence.”9 The Third Circuit decision could
“undermine military recruitment in a time of war,” it argued, while neither the law
schools’ right to free speech nor to expressive association were infringed by allowing
3 Id. at § 983(d)(1).
4 Id. at § 983(d)(2).
5 390 F.3d 219 (3d Cir.), reversed and remanded, No. 04-1152, 2006 WL 521237..
6 530 U.S. 640 (2000).
7 Brief for Respondents, at p. 36, Rumsfeld v. FAIR, No. 04-1152 (filed 9-21-2005).
8 Id. at pp 11-13.
9 U.S. Const., Art. I, § 8, Cls 1, 12 and 13.
military recruiters to conduct on campus interviews.10 In particular, the Solicitor General
distinguished the Boy Scouts case in that “recruiters are not a part of the institution itself
and do not become members through their recruiting activities.”11 Recruiters speak for
their employers, the brief claims, not the schools, unlike the scoutmaster who represented
the Boy Scouts in the earlier case. Moreover, the government emphasized that the law
schools remain free to protest the military’s message as long as they give recruiters equal
access. If the schools choose not to allow equal access, it was argued, they simply forego
funding.
Supreme Court Ruling in Rumsfeld v. FAIR
Chief Justice Roberts wrote the High Court opinion, joined by all other members
except Justice Alito, who did not participate in the proceedings. The Court was generally
receptive to each of the arguments proffered by the government’s briefs and oral
arguments in FAIR. First, the Chief Justice was unmoved by FAIR’s theory of
unconstitutional conditions, largely because of fatal flaws he found in the law schools’
First Amendment analysis. This unsettled area of the law, however, may be further
obscured by his observation that indirect compulsion by Congress via “a funding
condition cannot be unconstitutional if it could be constitutionally imposed directly.”
Whether this implies that Congress may even legislate access for military recruiters (to
college campuses and elsewhere), regardless of federal funding or federal policy with
respect to all other recruiters, may be a fertile subject for future legal debates. In addition,
broader questions could conceivably arise as to the legislative authority of Congress to
enact, within constitutional bounds, rules regarding military personnel and support that
may incidentally impinge upon civilian affairs and the rights of private citizens in a
variety of other ways.
On the question of whether the Solomon Amendment impairs the First Amendment
rights of the objecting institutions, the Court’s opinion rejected all three arguments put
forward by the FAIR respondents. First, the Chief Justice observed, while expressive
conduct may be subject to First Amendment scrutiny,
there is nothing in this case approaching a Government-mandated pledge or motto that
the school must endorse . . . [and] . . . ‘it has never been deemed an abridgement of
speech or press to make a course of conduct illegal merely because the conduct was12
in part initiated, evidenced, or carried out by means of language.’
Otherwise, practices having nothing to do with government dictating the content of
speech – expressing disapproval of the Internal Revenue Service by refusing to pay taxes,
for example – would enjoy First Amendment protection. Requiring law schools to
facilitate recruiters’ access by sending out e-mails and scheduling military visits were
10 Brief for the Petitioners, at 2, Rumsfeld v. FAIR, No. 04-1152 (filed July 2005).
11 Id. at 19.
12 No. 04-1152 (slip op) at 12 (citing West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642
(1943)(voiding state law requiring school children to recite Pledge of Allegiance and to salute
the flag); Wooley v. Maynard, 430 U.S. 705, 717 (1977)(holding unconstitutional New
Hampshire law requiring state motorist to display state motto – “Live Free or Die” – on their
license plates).
deemed “a far cry from the compelled speech” found in earlier cases. “Accommodating
the military’s message does not affect the law school’s speech, because the schools are
not speaking when they host interviews and recruiting receptions.”13 Nor, the opinion
finds, would they be endorsing, or be seen as endorsing, the military policies to which
they object. “A law school’s decision to allow recruiters on campus is not inherently
ex pressive.”14
Secondly, the Court distinguished the doctrine of “expressive association,” as applied
in Dale v. Boy Scouts of America.15 “If the government were free to restrict individuals’
ability to join together and speak, it could essentially silence views that the First
Amendment is intended to protect.”16 Such was not the situation here, however, according
to the Chief Justice. Merely allowing recruiters on campus and providing them with the
same services as other recruiters did not require the schools to “associate” with them. Nor
did it prevent their expressing opposition to military policies in other ways. They could
put up signs, they could picket, they could make speeches, and they could hold forums of
protest. Moreover, unlike the Boy Scouts case, no group membership practices or
affiliations were implicated by the Solomon Amendment. Recruiters do not become
components of the law schools – like the Scout leaders there – but “are, by definition,
outsiders who come onto campus for [a] limited purpose” and “not to become members
of the school’s expressive association.”
Finally, the Court recognized as “[beyond] dispute” that Congress has “broad and
sweeping” powers over military manpower and personnel matters – “includ[ing] the
authority to require campus access for military recruiters” – the exercise of which is
generally entitled to judicial “deference.” Accordingly, in rejecting FAIR’s position, the
Court concluded:
The issue is not whether other means of raising an army and providing for a Navy
might be adequate . . .(regulations are not ‘invalid’ simply because there is some other
imaginable alternative that might be less burdensome on speech). That is a judgment
for Congress, not the courts . . . It suffices that the means chosen by Congress add to17
the effectiveness of military recruitment.
Conclusion
The FAIR decision may be less important for its First Amendment teachings than
for what the Chief Justice’s opinion implies regarding the scope of Congress’ authority
to prescribe rules in support of the armed forces and national defense. Concededly, such
suggestions are plainly dicta to its holding on FAIR’s free speech claims, which
ultimately foundered on the shoals of the First Amendment. Nonetheless, they do
evidence an emerging judicial consensus favoring deference to the Congress where
military manpower needs – and possibly other national defense matters – are concerned,
13 Id. at 14.
14 No. 04-1152 (slip op.) at p.19.
15 Supra n. 115.
16 No. 04-1152 (slip op.) at 18.
17 Id.
even if alternatives with lesser impact on civilian populations and individual freedoms
may be available. Nor arguably would it be necessary to couch coverage as a “condition”
to receipt of federal subsidies, as does the Solomon Amendment, since the Chief Justice’s
opinion seems to conflate direct and indirect regulation in this context and to treat them
as constitutionally equivalent. Suffice it to say that any fuller appraisal of the potential
implications of the Court’s opinion in FAIR for questions of congressional power may
have to await the outcome of litigation of any future issues that may arise.