Rumsfeld v. FAIR: The Solomon Amendment and Free Speech

Publication Date: November 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Education

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Abstract:

Today virtually all law schools have a nondiscrimination policy that prevents employers who discriminate on the basis of race, gender, religion, or sexual orientation from recruiting on campus. In 1993, Congress passed the "Don't Ask, Don't Tell" policy, which allows the military to exclude or discharge any member who "engages in a homosexual act" or "states that he or she is a homosexual." Because the military bans openly gay service members, some law schools, citing their nondiscrimination policies, began barring military recruitment on campus. In response, Congress passed the Solomon Amendment.

Under the present version of the Solomon Amendment, federal funding is withheld from any "institution of higher education" or "subelement" (i.e., law school) that has a "policy or practice" that "either prohibits, or in effect prevents" military recruiters access to students "equal in quality and scope to that provided to other recruiters."

In September 2002, the Forum for Academic and Institutional Rights (FAIR), an association of law schools and professors, sued the Department of Defense, asserting that it was unconstitutional for the federal government to condition university funding on compliance with the Solomon Amendment. FAIR sought, on First Amendment grounds, a preliminary injunction against enforcement of the Solomon Amendment. A federal district court upheld the Solomon Amendment, but the U.S. Court of Appeals for the Third Circuit reversed the district court's decision and issued a preliminary injunction relative to the enforcement of the Solomon Amendment. The Third Circuit held that FAIR would prevail on its claim of unconstitutional conditions because the Solomon Amendment violated the law schools' First Amendment rights under the doctrines of expressive association and compelled speech.

The Department of Defense appealed the Third Circuit's decision to the U.S. Supreme Court. The government argues that the First Amendment is not implicated because the Solomon Amendment targets an institution's conduct, not its speech, and because it does not force an institution to take a position on an issue contrary to its beliefs. According to the government, if a school chooses not to allow equal access, it simply foregoes funding. In contrast, FAIR argues that the government cannot exact a price for a law school's expressive right to stand by its nondiscrimination policy. Moreover, FAIR asserts that requiring law schools to grant equal access to military recruiters forces schools to disseminate, facilitate, and host military recruiting messages in violation of the doctrine of compelled speech. The Supreme Court will hear the parties' oral arguments on December 6, 2005.

This report was prepared under the general supervision of Larry M. Eig, Legislative Attorney, and will be updated as events warrant.