Third Circuit Decision Holds That On-Campus Military Recruiting Statute Governing School Funding Is Likely Unconstitutional
 
February 15, 2006
 
Jonathan E. "Jon" O'Connell- Northern Virginia

In Fair v. Rumsfeld, 390 F. 3d 219, the United States Court of Appeals for the Third Circuit held that the Solomon Amendment, a federal statute which denies federal funding to colleges and universities that refuse to cooperate with military recruiting efforts, is likely unconstitutional. A number of law schools throughout the country maintain policies requiring all campus recruiters to comply with their non-discrimination policies. Many of these schools include sexual orientation as a protected class under their non-discrimination policies, and thus often object to the presence of military recruiters on their campuses because of the military’s exclusionary policy towards homosexuals. For a period of time, the Department of Defense allowed law schools to comply with the Solomon Amendment by permitting schools to provide accommodations to military recruiters, such as allowing recruiters to use campus facilities, while denying them the assistance of career service personnel provided to non-military recruiters. This allowed the schools to retain government funding, while at the same time express their disagreement with the military’s policy towards homosexuals. However, following the terror attacks on September 11, 2001, the Solomon Amendment was altered to require absolute equity in the access to career placement services provided to military recruiters.

In 2003, Forum for Academic and Institutional Rights (FAIR) challenged the statute, alleging that the law violated law schools’ First Amendment rights, and thus, conditioning federal funding on a school’s willingness to comply with the statute was unconstitutional. Specifically, FAIR argued that the statute violated a school’s freedom of expressive association and compelled it to assist military recruiting.

With regard to FAIR’s expressive association claim, the Court applied the elements set forth in the Supreme Court case of BSA v. Dale: “(1) whether the group is an ‘expressive association,’ (2) whether the state action at issue significantly affects the group’s ability to advocate its viewpoint, and (3) whether the state’s interest justifies the burden it imposes on the group’s expressive association.” Ultimately, the Court found that FAIR satisfied each of the three elements set forth in Dale. Regarding FAIR’s compelled speech claim, the Court found that the law did in fact force a law school to “propagate, accommodate, and subsidize” the military’s recruitment message and thus, was violative of the compelled speech doctrine.

In 2005, the Justice Department filed an appeal to the United States Supreme Court and certiorari was granted. The Court heard oral arguments in December and is expected to render a decision in the summer of 2006. The Solomon Amendment governs a number of aspects of the relationship between institutions of higher education and military recruiters, and thus the Court’s decision may have important implications for colleges and universities who have military recruiters visiting their campuses.

For more information, e-mail Jonathan E. O’Connell at jonathan.oconnell@hklaw.com or call toll free, 1-888-688-8500.