On-Campus Military Recruiting Law Held Constitutional
Denying federal funding to higher education institutions that prevent on-campus military recruiting is a constitutional exercise of Congress’ spending power and obligation to raise armies. That was the decision of a federal district court in New Jersey addressing a consolidated, multifront assault on the Solomon Amendment, 10 U.S.C. § 983(b). The case is Forum for Academic and Institutional Rights, Inc. v. Rumsfeld, 291 F. Supp. 2nd 269 (D. NJ 2003).
Congress passed the Solomon Amendment in 1994 to reinforce legislation enacted decades earlier authorizing the Department of Defense (DOD) to withhold funds from schools barring military recruiters or ROTC programs. In its current form, after several modifications, the Solomon Amendment empowers the DOD to determine if an institution effectively prevents the military from (1) ”gaining entry to campuses, or access to students … on campuses, for purposes of military recruiting” or (2) ”access by military recruiters … to information pertaining to [enrolled] students.”
On March 30, 2004, the U.S. House of Representatives passed the “ROTC and Military Recruiter Equal Access to Campus Act of 2004.” Through this Act, Congress proposes to amend the Solomon Amendment to ensure that colleges and universities give military recruiters not just entry, but access to campuses and the students that is equal in quality and scope to the access provided to any other employers.
The statute encompasses funds from various federal agencies, including the Departments of Defense, Education, Health, Labor, Transportation and Homeland Security, see 10 U.S.C. § 983(d)(2), but its application has been narrowed more recently. The Solomon Amendment applies now only to campus-based aid programs, such as the federal Perkins and Work Study programs, and not to direct student aid programs, such as Pell Grants and Family Education Loans. Exceptions apply to schools with a religious-based policy of pacifism, 10 U.S.C. § 983(c), schools barring all employers from on-campus recruiting, 32 C.F.R. § 216.4(c)(3), and schools at which student interest does not justify military recruiting, § 216.4(c)(6)(ii), among others.
In this case, the Solomon Amendment faced a constitutional attack from a coalition of law school, faculty and student associations united in their opposition to the military’s stance on homosexual conduct. They argued first that the Solomon Amendment’s obligations of campus access and affirmative assistance violate their First Amendment rights of academic freedom, free speech and association. The court first acknowledged that Congress, incident to its power under the Constitution’s Spending Clause, may attach conditions on the receipt of federal funds. That power, however, is not absolute. The Doctrine of Unconstitutional Conditions recognizes that our government may not deny a benefit on a basis that violates the Bill of Rights. Nonetheless, the court reasoned that because the Solomon Amendment “does not compel law schools to say anything” it does not significantly intrude upon the plaintiffs’ freedoms of expression. Law schools, professors and students are free to advocate their own viewpoints, even those diametrically opposed to the military, without repercussion or dilution.
Having thus concluded that the statute has, at most, an indirect or incidental effect on free expression, the court applied an intermediate level of scrutiny, which requires that an important or substantial government interest be involved. The court found such an interest in the Constitution’s affirmative obligation to raise and support military forces. Intermediate scrutiny also requires that the regulation’s burden on free speech be “no greater than is essential” to further that government interest. Without campus access, the court reasoned, military recruiters would be substantially hindered; and therefore, the burden on free speech was essential to the purpose of the law.
The plaintiffs argued next that the Solomon Amendment discriminated based on viewpoint because it promotes only a pro-military recruiting message. The court found, to the contrary, that anti-military messages can and do thrive on law school campuses. The law does not target any particular viewpoint or any speech at all. The Solomon Amendment’s target is conduct which prevents on-campus military recruiting, and that target does not vary depending on the viewpoints expressed on campus.
Lastly, the plaintiffs challenged the Solomon Amendment as void for vagueness. However, because the statute is neither a penal code nor a direct regulation on speech, the court refused to apply a heightened standard of review and determined that the statute and its regulations were sufficiently clear to pass constitutional muster. We have not, however, heard the last from the plaintiffs in this case. They have appealed to the U.S. Court of Appeals for the Third Circuit. Stay tuned.
The Solomon Amendment, for better or worse, remains fully intact and enforceable with Congress seeking to ensure that military recruiters have at least equal access to campus students. Institutions of higher education that accept federal funding must provide on-campus access to military recruiters consistent with applicable federal regulations.