Supreme Court Upholds Equal Access for Military Recruiters

Capping a three-year, seesaw legal battle, a unanimous Supreme Court upheld the government’s authority to withhold certain federal funds to colleges and universities that deny equal access to military recruiters on their campuses. The case is Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. _____ (2006), and the opinion was delivered by the new Chief Justice, John Roberts.

At issue is the Solomon Amendment, 10 U.S.C. § 983, a statute Congress enacted in 1994 to authorize the Department of Defense to withhold funds from higher education institutions that block military recruiters or ROTC programs. A coalition of different interest groups, united in their opposition to the government’s policies on homosexuals in the military, challenged the constitutionality of the statute in 2003. The Forum for Academic and Institutional Rights, Inc. (FAIR), an association of law schools, students and faculty, argued that the Solomon Amendment violated their First Amendment rights to speak out against discrimination.

The legal battles went back and forth. FAIR’s first strike failed, as a federal District Court concluded that the Solomon Amendment did not violate the plaintiffs’ First Amendment rights. See FAIR v. Rumsfeld, 291 F. Supp. 2d 269 (D. NJ 2003). FAIR had better luck on appeal, convincing a divided panel of the Court of Appeals for the Third Circuit that the Solomon Amendment was an unconstitutional regulation of free speech and association. 390 F.3d 219 (2004). But the Supreme Court reversed, concluding that the Solomon Amendment was a proper exercise of Congress’ power to provide national defense.

What the Supreme Court Said

Direct v. Indirect

The Supreme Court reasoned that although Congress has broad powers to regulate military recruiting directly, in this case its regulation is indirect: compliance with the Solomon Amendment is only required as a condition for the receipt of federal funds. That regulatory power, derived from the Constitution’s Spending Clause, is not absolute. The government cannot attach conditions that would violate the freedoms protected by the Bill of Rights. Applying this doctrine of unconstitutional conditions, the Supreme Court concluded nonetheless that the equal access obligations of the Solomon Amendment were constitutional.

No Compelled Speech

The Supreme Court found no violation of the freedom of speech because the Solomon Amendment “neither limits what the law schools may say nor requires them to say anything.” The law schools, their faculty and their students are free to express their own views and even to oppose the government’s policies without repercussion or dilution of their message. There is no content control. The statute “affects what the law schools must do ... not what they may or may not say.”

No Expressive Conduct

The freedom of speech also limits the government’s ability to force one speaker to accommodate another speaker’s message, as addressed perhaps most famously in the St. Patrick’s Day parade case, Hurly v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). In such cases, an essential element was that the “speaker’s own message was affected by the speech it was forced to accommodate.” By contrast, the Supreme Court found that hosting recruiters on campus is not an inherently expressive activity in the way that a parade, newsletter or even flag burning can be. Consequently, the Solomon Amendment does not affect, in more than an incidental way, any constitutionally protected speech or expressive conduct by the law school members.

No Compelled Association

Similarly, the Supreme Court found no violation of the freedom of association. The statute does not attempt to regulate whom law schools accept into their membership or communities. Members of the law school communities are free to disassociate themselves from military recruiters and with any message the recruiters voice. Thus, the Solomon Amendment does not result in the kind of “forced inclusion” which the Court found unconstitutional in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

What It Means for Colleges and Universities

The Solomon Amendment is now the law of the land when it comes to military recruiting on campus. Here is how it affects recruiting at colleges and universities.

Funding

The restrictions of the Solomon Amendment apply to any institution of higher education accepting funds from the Department of Defense, Homeland Security, the National Nuclear Security Administration, the Department of Energy, the Department of Transportation, Central Intelligence Agency and any funds made available for any department or agency for which regular appropriations are made in the Departments of Labor, Health and Human Services, and Education, and related Agencies Appropriations Act. Importantly, the Solomon Amendment does not apply to federal funding available solely for student financial assistance, related administrative costs, or costs associated with attendance.

Equal Access

The government may withhold the specified federal funding if the Secretary of Defense determines that an institution has a policy or practice that either prohibits or in effect prevents military recruiters “from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting 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.” Accordingly, colleges and universities must provide military recruiters with access to their students and campuses and must do so in a manner that is at least equal in quality and scope to the access they provide to other employers.

Access to Information

The Solomon Amendment also requires colleges and universities to provide military recruiters with access to the following information about students who are 17 years of age or older and who are enrolled at the institution: names, addresses, telephone listings, date and place of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student.

Enforcement

The Solomon Amendment applies to each “subelement” of a college or university. Consequently, if a graduate school, laboratory or other part of the institution fails to grant equal access to military recruiters, then the government many withhold funds from the entire institution.

Exception

There is a single statutory exception for institutions with a “longstanding policy of pacifism based on historical religious affiliation.”

Review

Institutions should review these requirements with recruiting coordinators for each part of the institution that conducts its own on-campus recruiting. Institutions are also well advised to review their recruiting policies and practices with legal counsel.

For more information, e-mail Paul G. Lannon, Jr. at paul.lannon@hklaw.com or call toll free, 1.888.688.8500.