Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
Headline: Court upholds requirement that law schools give military recruiters equal campus access, rejects First Amendment challenge, and forces schools to choose access or risk losing federal funds.
Holding: Because Congress may require law schools to provide military recruiters equal access to campuses and students, the Solomon Amendment does not violate schools’ First Amendment speech or association rights.
- Requires law schools to give military recruiters equal access or risk losing federal funds.
- Allows military recruiting on campus with the same services as other employers.
- Keeps schools free to speak against military policy but not to bar recruiters while keeping funds.
Summary
Background
FAIR is an association of law schools that oppose discrimination, including on the basis of sexual orientation. Some member schools restricted military recruiters because they objected to the military’s policy on homosexuals. The Solomon Amendment conditions certain federal funds on giving military recruiters access to campuses and students that is at least equal in quality and scope to the access given other employers. The Department of Defense had adopted an equal-access policy and Congress codified that policy; FAIR sued to block enforcement and sought a preliminary injunction.
Reasoning
The Court read the statute to require law schools to provide military recruiters the same access to students that the most-favored nonmilitary employer receives. It held the Solomon Amendment regulates conduct, not speech, and that any compelled assistance (emails, notices, scheduling) is incidental to that conduct. The Justices rejected the idea that hosting or assisting recruiters forces schools to endorse military views. They also held that the law does not violate expressive-association precedents because recruiters are outsiders, not members. Even if the conduct were expressive, the rule would survive the O’Brien test because Congress has a substantial interest in effective military recruiting.
Real world impact
Law schools must either provide equal recruiting access to the military or risk losing specified federal funds, subject to a narrow religious-pacifist exception; schools remain free to criticize military policy and organize protests. The Court reversed the Third Circuit and sent the case back for further proceedings consistent with its opinion.
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