ACSBlog: The Blog of the American Constitution Society

Some observations that readers have already shared, now moved to the front page:

Reader Ian:

While the Court did come up with a thinly vieled way to distinguish Dale, Dale involved a statute which compelled organizations to accept new members, while FAIR did not, this reasoning is hardly persuasive. If membership is the only thing distinguishing Dale and FAIR, nothing prevents Yale Law School from creating a "recruitment club" that only non-discriminatory employers can belong to, and restricting recruitment opportunities to members of the club.

Unfortunately, I think the real rule that emerges from FAIR and Dale is that when an organization seeks to discriminate against homosexuals, that is constitutionally protected, but when they seek to prevent such discrimination, the Constitution does not apply.

The opinion seemed to leave open the possibility that Congress could still require colleges and universities to host military recruiters even if they refused the federal funds. "Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power." The only true out was to not allow any recruiters on campus.

On December 6, 2005 the U.S. Supreme Court will hear argument in Rumsfeld v. F.A.I.R., a case arising from a challenge to the constitutionality of the Solomon Amendment, a federal law denying federal funds to institutions of higher learning, including law schools, that fail to facilitate the efforts of military recruiters.

ACSBlog is pleased to bring together two distinguished academics who have been actively involved in the case to debate its merits. Presenting the arguments against the constitutionality of the Solomon Amendment will be William Eskridge, a professor of law at Yale Law School and a board member of FAIR; Daniel Polsby, professor of law and Dean of the George Mason University School of Law, who has filed an amicus brief in support of the Amendment, will take the contrary view.

Tuesday:
Polsby: "An Unremarkable Use of Congress’s Spending Power"
Eskridge: "A Core Violation of the First Amendment"
Wednesday:
Polsby: "Barely a First Amendment Case at All"
Eskridge: "One Law School, Expressive Association, and Compelled Speech"
Thursday:
Polsby: "The Solomon Amendment’s Strings Are Light"
Eskridge: "Kulturkampf Concerns"
Friday
Polsby: "Not a case about gays and the military"
Eskridge: "The Real Stakes of the Solomon Amendment Case"

Summaries of Briefs filed in Rumsfeld v. F.A.I.R. are located here.

Because the Supreme Court's decision in F.A.I.R. v. Rumsfeld will directly affect law school campuses throughout the country, several law students have endeavored to create summaries of the briefs filed in the case, to better assist in the understanding of the issued involved. These posts are summaries of the positions taken by the authors of the briefs and do not represent the views of the American Constitution Society. Below are links to the briefs (HT to Solomon Response for links to briefs) and the summaries posted on the ACSBlog.

The Solomon Amendment debate is an important constitutional debate. Dan and I appreciate the forum the American Constitution Society has provided this week Our exchange ends with disagreement about the stakes of the debate.

In one sense, the stakes are low. The Government says the Solomon Amendment is all about military preparedness, but that is not true. The record in the FAIR case has no evidence that the armed forces are not able to recruit excellent lawyers without coercing law schools into providing most-favored-employer access to their placement services (as the statute has required only since 2004). In the 1990s, when the law schools were not providing that access, the armed forces hired more than 1000 new lawyers – and there is no record that these lawyers were not excellent or did not fully meet the needs of the military.

Moreover, our experience at Yale has been that law students interested in serving the armed forces had plenty of opportunities to meet with recruiters. A number of Yale graduates became military lawyers in the 1980s and 1990s, when military recruiters were not participants in our placement service. Since the armed forces coerced their way into the placement service, there has been diminished interest at the law school. This is tentative evidence that the revised Solomon Amendment will undermine military preparedness.

In another sense, the stakes are high, as I have argued in prior posts. The Solomon Amendment is not “a routine use of the congressional spending power to further a lawful objective.” I cannot name any federal spending limitation that has as little connection between the purposes of the federal funds (medical and science research) and the condition imposed (law schools must suspend their anti-discrimination policies for the armed forces). Nor can I name any federal spending law that cuts off funds because a recipient is applying an ordinary anti-discrimination policy against government entities.

The Solomon Amendment is not a routine use of federal spending. Nor is the objective lawful, for the record is replete with evidence that Congress’s objective was to punish dissent and that the Department of Defense has applied the Solomon Amendment to prevent law schools from “send[ing] the message that employment in the Armed Forces is less honorable or desirable” than with non-discriminating employers (DOD Letter to Yale, May 29, 2003).

If the Solomon Amendment is a constitutional exercise of Congress’s spending power, what liberties can Congress not regulate? And what is to prevent Secretary Rumsfeld from then telling the law schools: Now that you have provided military recruiters access to your placement services, we shall cut off all your federal funds if you remind students, in any way, that military recruiters are discriminatory or in any way not desirable. Such a reminder, by anyone in the law school, “send[s] the message that employment in the Armed Forces is less honorable or desirable” than with non-discriminating employers.

It is also inaccurate to say that the government’s statutory discrimination against gays in the military has nothing to do with the Solomon Amendment litigation. The government’s discrimination against lesbian, gay, and bisexual service personnel is as morally squalid a policy as any in the last generation, is indefensible from a policy perspective (hence you will not see government officials even agree to debate critics in public), is not supported by most military personnel, and is kept in place by political inertia and by legislator fears that any statutory change will tag them as “promoting homosexuality.” Federal judges operate under the same fears and so have been reluctant to admit that the policy is the constitutional embarrassment that it clearly is.

Given this ridiculous state of affairs, the law schools have become the primary situs for political pushback against this indefensible policy. The Clinton Era Congress rebuked the law schools, and the Bush Era Department of Defense and Congress have turned the screws until universities have surrendered. If the First Amendment forbids anything, it surely forbids government retaliation against private institutions because of their political criticism of a policy that almost everyone (privately) concedes is bad for the military and bad for the country.

Read the post by Daniel Polsby to which this post is a reply.

This is getting out of hand -- Kulturkampf, the Catholic Church, Bismarck and Imperial Germany, the “knock on the door that could be for me.” With due respect for your obviously sincere and passionate feelings on the subject, the Solomon Amendment can hardly be spun as the steel tip of the jackboot of proto-Fascist rule. Rather, it is just the same old same old, a routine use of the congressional spending power to further a lawful objective. It is healthy that the Solomon Amendment has reminded people of some of the inconveniencies that go along with sharing your world with a supersized administrative welfare state. But, you know, Congress spent $300,000,000 in New Haven alone – just this year. And it spent $300,000,000 there last year as well. And in only a few more weeks the trucks will be arriving with another $300,000,000. A certain amount of swack necessarily goes along with that much cash. If you don’t like it you need to get your own $300,000,000. It’s as simple as that.

You want to make Rumsfeld v. FAIR into a case about gays and the military. It simply is not a case about gays and the military. Your side gave that up by stipulating to the lawfulness of “don’t ask, don’t tell.” “Gay rights” is out of the case. The constitutional issue would be identical if the law schools professed pacifist motives rather than antidiscrimination motives for keeping out military recruiters.

There is more at stake in the Solomon Amendment litigation than the rights of law schools to dissent from anti-gay federal policy. This litigation is a test of the First Amendment, the constitutional provision many Americans see as the only one the Court has applied in a principled manner, disciplining the federal government even when it is carrying out popular policies. Foundational to the First Amendment is what I’d call the “Kulturkampf Concerns.”

Several Justices have used Kulturkampf to refer to a “culture war.” The debate over gays in the military has a culture-war feature: some traditionalists believe that homosexuality is upsetting or even predatory and ought to be purged; other Americans believe that homosexuality has no more relevance to government service (even in the military) than religion or political belief. The government can take sides in a culture war, within limits. For example, federal officials have wide latitude to publish studies and make speeches claiming that (open) homosexuality creates certain problems within the armed forces. But the federal government cannot, consistent with the First Amendment, prohibit liberals from making speeches claiming that the government’s information is unfounded, nonsensical, or worse.

Nor can the government tell liberals that they will lose their Medicare benefits if they take such public positions. Such strings may be “light” (technically easy to satisfy), but light strings have heavy normative consequences if they entail waiving First Amendment rights. Make this a closer parallel to the Solomon Amendment, where medical and science departments at Yale would lose $300 million in research grants because of the law school’s anti-discrimination policy. Under the First Amendment, the government cannot say you will lose your Medicare benefits because your sister criticizes the government.

Neither the government nor anyone else should feel constrained to defer to the law schools' policy of discrimination against JAG recruiters. It is flat out irrational for the law schools -- or anyone else -- to stigmatize the military for choices that the military did not make.

The military is different from other employers. It is one thing to exclude private law firms which have chosen to indulge a “taste for discrimination” against a class of individuals the law schools want to protect. The Solomon Amendment leaves the schools free to exclude these firms. The military, however, has made no such choice. It is simply obeying a statute (10 U.S.C. § 654, popularly known as “don’t ask, don’t tell”) that defines eligibility for service. The military has no option: it must obey this law. And we should not wish it to be even slightly refractory about the principle of civilian control.

The military is the only employer bound by federal law to exclude homosexuals. The law schools cannot treat the armed services “equally” by pretending that they’re just another law firm. Law schools that exclude the armed forces because of decisions made by the Congress, the president and the courts -- and not by the military -- are simply being petulant, and morally unserious about their professed values. This becomes especially apparent when the schools go on receiving members of Congress with ruffles and of the Executive with flourishes and of the judiciary with near prostration.

When I was a student at the Yale Law School, 1975-78, the conventional wisdom was that openly gay and lesbian Americans were criminals or psychopaths unfit to practice law. Many of us were even afraid that we would be expelled from law school if our minority status were known. Several students in the Class of 1978 asked the Faculty for some recognition of the difficulties even suspected homosexuals faced among law firms. To our surprise, the Faculty after intense debate voted to amend Yale’s anti-discrimination policy to include sexual orientation. Professors from that era have told me that they took that position to demonstrate the Law School’s commitment to both a principle (anti-discrimination) and a policy (inclusion of all of Yale law students in a professional community where merit and honesty mattered). These commitments entailed non-cooperation with employers who discriminated on the basis of illegitimate criteria, including sexual orientation.

For this reason, the Law School denied the services of its placement office to discriminatory employers, including but not limited to the armed forces. (Military recruiters were able to contact students outside the official law school placement office, and in fact many Yale law graduates served as military lawyers in the 1980s and 1990s.) Lesbian and gay law students appreciated the inclusive message the Law School’s consistent policy sent to them, and Yale became a center for informed and rational discourse about sexual and gender minorities. We were already a normative community, dedicated to academic exploration and debate. The yearly exercise of the anti-discrimination policy deepened the normativity of our community. Just as Yale had been ahead of the national curve in insisting that people of color and women become lawyers and be treated as dignified citizens, so Yale moved ahead of the nation in the 1980s in urging a community of toleration for sexual and gender minorities.

For the Government to punish Yale’s principled expression is a core violation of the First Amendment and its purposes, as I suggested in yesterday’s posting. The Government’s retaliation is inconsistent with the rights of expressive association recognized in the Boy Scouts case, as well as other cases preventing the Government from compelling private persons or groups to carry state messages.

The Government says Yale’s case, like cases of other law schools, is wholly unlike the Boy Scouts case, where the Supreme Court ruled that the state could not require the Scouts to retain an openly gay Scoutmaster. That is a trivial factual difference; the Court’s holding rested upon the ground that the Scouts’s message of “moral straightness,” and its expressive community, would be compromised if they were forced to include a gay officer. Likewise, Yale’s message of “moral inclusion,” and its expressive community, have been compromised by being forced to allow discriminatory recruiters crash our placement services.

I don’t get it. The Solomon Amendment leaves professors, law schools and universities free to teach, say and write whatever they please on whatever subject. The statute sets up a minimal, easy-to-comply-with regulation of behavior, not speech. Rumsfeld v. F.A.I.R. as a “core first amendment” case simply does not scan.

The law schools – I am trying to reconstruct the argument as best I can -- say, “We’re an expressive association, like the War Veterans Council in Hurley v. IAGGB (the St. Patrick’s Day Parade case); we’re like the Boy Scouts in the Dale case. Just as a state could not use its public accommodations laws to force the Boy Scouts to appoint a gay rights activist as a scoutmaster, or to force the war veterans council to make room for gay rights protesters to march in its parade, it follows that Congress could not use its powers to raise and support armies and to provide for the common defense and general welfare, to force us to receive military recruiters.”

That’s plaintiffs’ case in a nutshell. And everything is wrong with it.

1. When the Congress tells the schools that they have to hire a warmonger to run their peace studies programs, only then their will their situation begin to resemble that of the Boy Scouts in the Dale case. When Congress prescribes universities’ curriculum, and decides that every course must (or for that matter no course may) contain a gay, lesbian, transgendered and bisexual module, then they may complain that their rights under Hurley were violated.

2. Assuming law schools are “expressive associations,” it remains for the plaintiffs to demonstrate, not merely assert, that, because the first amendment forbids a state to command a certain result under its public accommodations laws, therefore the first amendment forbids the Congress to command that same result using the raise and support armies clause and the spending clause. The point isn’t obvious. The decisions of Congress, when it is acting under Article I, section 8, clause 12, receive more than ordinary deference.

3. As I mentioned yesterday, the Solomon Amendment does not “force” anyone to do anything – unlike the public accommodations statute in Dale, which would have resulted in a direct court order to the Scouts to appoint the plaintiff as a scoutmaster.

4. And further, even if the threat to withdraw incentives did amount to “coercion,” the Solomon Amendment does not coerce law professors and schools into anything like the personal contact with JAG officers that scoutmasters have with the boys in their troops, nor does it affect the content or curriculum of anything taught in law schools or universities.

I appreciate the plaintiffs’ desire to make what use they can of Hurley and Dale, the Supreme Court precedents most hated by gay rights litigators, to further what is seen as a gay rights objective. But those precedents simply don’t fit the facts of the Solomon Amendment case, which is barely a first amendment case at all.

After all, no one in this litigation has questioned schools’ constitutional right to shun the military. The question is whether they may assert that right and then insist that the very fact that they have asserted that right awakens yet a further constitutional right, namely the right to receive government money. The second constitutional claim is something of an Ezekiel’s Wheel – way up in the middle of the air. If you aren’t entitled to government money in the first place, you cannot become entitled to it simply because –- by behavior and actions, and not by speech and persuasion -- you seek to frustrate a duly enacted and concededly lawful congressional policy. Think of it this way: a state could give money to the Boy Scouts on the condition that they admit gays. The Scouts would either take the money and comply or not take the money. Does anyone think that they could take the money and, as a matter of first amendment right, still exclude gays?

F.A.I.R.’s brief to the Supreme Court uses a tantrum word, “bigot,” to describe the U.S. military. Their counsel of record has used this term again and again in public to refer to the armed forces. F.A.I.R.’s members must surely be aware that it is not the military that is actually making the policy that they don’t like. It isn’t up to the armed services to determine who is eligible to serve and who is not. “Don’t ask, don’t tell” is a statute -- the law of the land. The law schools, if they are morally serious, should boycott the organizations actually responsible for that law. Neither they nor their universities should take money from the unclean hands of Congress, which passed the law. They should not allow the Department of Justice, which enforces the law, to interview on campus. And they should certainly decline to supply law clerks to the judiciary, which has repeatedly upheld the law.

Of course the schools say that they can’t do these things. Actually, they can. It’s just that they don’t want to.

Read the post by William Eskridge to which this post is a reply. Or read William Eskridge's response to this post.

The Solomon Amendment is a core violation of the First Amendment. The purposes of the First Amendment are to protect and assure (1) individual liberties of expression, including that of normative associations; (2) a free flow of ideas; and (3) vigorous dissent within political discourse in this country. In light of these established purposes, even the Government’s Brief in the FAIR litigation concedes that a statute aimed at punishing or retaliating against dissent violates the First Amendment. This is precisely what the Solomon Amendment does.

In the wake of the Don’t Ask, Don’t Tell law (1993), most law schools applied their anti-discrimination policies to exclude military and many other recruiters from their formal placement services. In response to the application of anti-discrimination policies to military recruiters, Representative Solomon proposed cutting off federal funds. As co-sponsor Representative Pombo put it, Solomon’s amendment would “send a message over the wall of the ivory tower of higher education” that they could not criticize the government and expect to receive government money (140 Cong. Rec. 11441).

As enacted in 1994, the Solomon Amendment terminated certain federal funds if the school denied entry to campuses or access to students. 10 U.S.C. 983. But virtually all of the nation’s law schools allowed military recruiters access to students and to campuses. What they did not do was to provide the full panoply of career service assistance to the armed forces that they were willing to provide to non-discriminating employers. For that reason, most were able to comply with the Solomon Amendment. In 2001, the Department of Defense demanded the same access to career service assistance that these law schools afforded any other employer. Because the statute only required “access” to students, law schools felt they could preserve their anti-discrimination policies. The Department rejected this effort, on the ground that any kind of unequal access “sends a message” that the military is not as honorable an employer as others (DOD Letter to Yale, May 29, 2003). Congress ratified the Department’s stance in the 2004 amendment to the Solomon law. Law schools have caved in to this pressure, because their universities would lose millions of dollars in medical and scientific research grants. Yale alone would lose more than $300 million.

As currently codified, the Solomon Amendment essentially penalizes just those schools that exclude military recruiters because of the schools’ expression of the anti-discrimination norm. Thus, schools that allow no employers access to their campuses are exempt from the fund cut-off. And so are schools that exclude military recruiters because they adhere to a philosophy of “pacificism based on historical religious affiliation.” The viewpoint discrimination built into the structure of the Solomon Amendment reflects its history and recent enforcement – to penalize only those universities whose action reflects political dissent.

An unprecedented tying of massive amounts of federal grants to the renunciation of a dissenting stance by academic institutions is not only at war with the purposes of the First Amendment, but also at odds with several lines of doctrine. For example, the Supreme Court has ruled that the state cannot compel citizens to carry a state message, on their license plates, for example. Likewise, the state ought not be allowed to force law schools to carry a governmental message (Uncle Sam Wants YOU, unless you’re gay) in their job recruitment process. Gay-anxious organizations like the Boy Scouts enjoy a right of expressive association that allows them to distance themselves from pro-gay messages. Law schools have a similar right to stand up for their lesbian and gay law students and distance themselves from discriminatory messages.

Does any of this analysis change because Congress invokes its power to raise and support the armed forces? It ought not change. If Congress passed a law penalizing Americans for expressing dissent by burning the flag, it would not matter that Congress was carrying out its military affairs powers. Likewise, the First Amendment prevents Congress from making it illegal to criticize its Don’t Ask, Don’t Tell policy. What Congress cannot do directly, through a criminal statute, it ought not be able to do indirectly, through the threatened termination of research funds.

Read the post by Daniel Polsby to which this post is a reply. Or read Daniel Polsby's response to this post.

The Solomon Amendment is an unremarkable use of Congress’s spending power in support of what is, after all, one of its broadest powers, the power to raise and support armies. United States Constitution, Article I, section 8, clause 12. With respect to no other power have the courts accorded Congress’s judgments greater deference. Rostker v. Goldberg.

Here is the power to raise and support armies:

• If you burn your draft card to protest the Vietnam War, you can be sent to prison for obstructing the draft. United States v. O’Brien. Mind you, Mr. O’Brien wasn’t burning anything in the draft board’s files – his name, his address, his draft status, anything else about him – but only a piece of paper that he was required to carry on his own person. There was much of “speech” in what Mr. O’Brien did, and hardly anything that would (practically speaking) obstruct the draft. Nevertheless, he could be criminally punished.

• Congress may conscript men and only men into the armed services, leaving women completely to one side. Rostker v. Goldberg. Of course this policy creates two suspect class-based burdens at once: it approximately doubles the number of men who will have to be conscripted and it insultingly tells women that when the going gets tough, they had better get back to their distaff and let the men sort things out. The Court’s holding placed “its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women,’” said Justice Marshall. Maybe so. Nevertheless, the statute is valid.

• The draft isn’t much thought about these days, but as a reminder, here is what was involved: The government can make you leave school or your family for years at a time, force you to live communally with lots of other men without a molecule of personal privacy, ship you overseas, censor your mail, order you into extreme personal danger and even certain death, and have you sent to prison or even executed if you refuse.

This is a broad power.

On December 6, 2005 the U.S. Supreme Court will hear argument in FAIR v. Rumsfeld, a case arising from a challenge to the constitutionality of the Solomon Amendment, a federal law denying federal funds to institutions of higher learning, including law schools, that fail to facilitate the efforts of military recruiters.

ACSBlog is pleased to bring together two distinguished academics who have been actively involved in the case to debate its merits. Presenting the arguments against the constitutionality of the Solomon Amendment will be William Eskridge, a professor of law at Yale Law School and a board member of FAIR; Daniel Polsby, professor of law and Dean of the George Mason University School of Law, who has filed an amicus brief in support of the Amendment, will take the contrary view.

Tuesday:
Polsby: "An Unremarkable Use of Congress’s Spending Power"
Eskridge: "A Core Violation of the First Amendment"
Wednesday:
Polsby: "Barely a First Amendment Case at All"
Eskridge: "One Law School, Expressive Association, and Compelled Speech"
Thursday:
Polsby: "The Solomon Amendment’s Strings Are Light"

By Liz Aloi, Columbia Law School

Amici, fifty-six members of the Columbia Law School faculty, put forth the following the following arguments in support of FAIR: (1) The Solomon Amendment does not prohibit the provision of federal funding to institutions of higher education whose recruiting policies provide access to military recruiters on the same terms as all other employers; (2) The interpretation of the statute offered by the departments of the military is not entitled to deference; and (3) The canon of constitutional avoidance counsels in favor of construing the statute so as not to pass on a question of constitutionality.

Fifty-six members of the Columbia Law School faculty filed a amicus brief in support of the Forum for Academic and Institutional Right (FAIR) in the Solomon Amendment case.

The brief argues that the Supreme Court can avoid passing on the constitutional questions presented by the parties by applying the Solomon amendment as written and determining that the text of the Solomon Amendment does not bar federal funding for institutions of higher education that have adopted and evenhandedly applied to all employers policies prohibiting discrimination by organizations participating in institutionally-sponsored recruiting programs.

In their own words:

Pursuant to the provisions of the Solomon Amendment, no specified funds may be provided to an institution of higher education if that institution bars the military from “gaining access” for “recruiting in a manner that is at least equal in quality and scope” to the access provided to “any other employer.” 10 U.S.C. § 983(b)(1) (2005).  The only reasonable construction of the statute is one that permits federal funding to institutions of higher education whose universally applicable policies do not single out the military for gaining access to campuses and students on less favorable terms the terms provided to other employers.

The amici, then, posit that evenhanded application of universally applicable recruitment policies, such as those adopted at Columbia Law School, satisfy the Solomon Amendment’s requirement, as currently written, that institutions receiving federal funds permit the military to gain access to campuses and to students on campuses for the purposes of military recruiting in a manner that is at least equal in quality and scope to access provided to other employers.  In short, they would like the Court to hold that the Solomon Amendment does not prohibit federal funding to institutions whose policies and practices treat the military identically to all other employees.

By Steven Briggs, George Washington University Law School

Amici National Lesbian and Gay Law Association, Law Student Associations, State Bar Associations, and the National Gay and Lesbian Task Force in Support of Respondents put forth the following the following arguments in support of FAIR: (1) The Solomon Amendment infringes on law schools' right of freedom of association; (2) Ongoing discrimination in the legal profession demonstrates the value of the law schools' associational interest in their nondiscrimination policies; and (3) The rapid surge in nondiscrimination laws and the military's influence on American society underscore the significance of law schools' constitutionally protected decision to take a stand in the ongoing debate over sexual orientation discrimination.

Amici in this brief are law student associations, national and state bar associations, and other advocacy groups.  The main thrust of their argument is that law schools’ nondiscrimination policies serve expressive functions, which expression is significantly hampered by the Solomon Amendment.

They argue that law schools’ nondiscrimination policies serve three expressive functions which are protected by the First Amendment’s guarantee of free association. First, teaching values of nondiscrimination that the law schools believe are essential improving the legal profession and society.  Second, creating an academic environment that is equally welcoming to all law students.  And third, taking a stand and providing an example in a heated debate concerning an important social issue.

They explain that the Solomon Amendment infringes law schools’ right of freedom of association because it compels law schools to grant access “that is at least equal in quality and scope” to military recruiters.  The military's policy of Don't Ask Don't Tell, according the amici, violates policies of discriminating against homosexuals at numerous law schools.  The schools’ policies require that career placement services are not extended to employers who discriminate.  While the government argues that the Solomon Amendment only controls conduct, not association, amici respond that many actions other than limiting an association’s membership can be an unconstitutional interference with the freedom of association.  They point to past Supreme Court cases which have found unconstitutional activities such as engaging in litigation, choosing political alliances, and requiring disclosure of NAACP membership roles.

The amici state the issue in question as “whether the schools’ forced association with the military conflicts with their basic values and ideals,” because enabling others to discriminate is just as bad as discriminating oneself.  With such a framing of the issue, the government’s argument that the law schools’ antidiscrimination message can be distingushed from the military recruiters’ message is moot, because the law schools’ antidiscrimination message is critically and impermissibly diminished when they are compelled to violate their own antidiscrimination policies.  The Solomon Amendment requires law schools to ask students to do as they say, not as they do.

The amici also address the question of who decides what values the law schools wish to express, and whether the Solomon Amendment impairs expressing that message.  The amici point to recent Supreme Court decisions, including Boy Scouts of America v. Dale, which held that courts should defer to an organization’s view of both the nature of its expression, and what would impair that expression.  Quoting the Court’s decision in Dale, amici urge that “it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent.”  In this case, law schools have sent a very clear message with their written statements explicitly prohibiting discrimination against homosexuals.  The Supreme Court should defer to those statements.  The two sides also disagree over whether the Solomon Amendment prevents schools from sending their message.  The government argues that law schools remain free to voice their opposition to military recruiting policies.  Amici believe the Solomon Amendment is unconstitutional because it prevents law schools from sending a message of action, rather than one merely of words. 

The National Lesbian and Gay Law Association and fellow amici urge that ongoing discrimination in the field of law makes the law schools’ antidiscrimination efforts particularly important.  Just as law schools opposed racial segregation more than fifty years ago, they are now combating discrimination on the basis of sexual orientation.  It was not until the 1970s that LGBT law student and bar groups began to appear in numbers.  Until the mid 1980s, bar associations excluded homosexuals from the profession on the basis of supposedly deficient moral character.  The amici cite several studies which report that lesbian and gay attorneys report witnessing nearly twice the incidence of anti-gay discrimination as heterosexual attorneys.  The discrimination is sufficiently stifling that nearly half of LGBT respondents to a survey in the District of Columbia reported that they concealed their sexual orientation for fear of harm to their careers.  Other studies suggest that when LGBT attorneys are forced to conceal details of their private lives, they can appear aloof and distant and thus are less likely to be promoted.  Amici also point to evidence that anti-gay discrimination drives LGBT attorneys underground: one quarter of heterosexual attorneys in the District of Columbia indicated they did not know any LGBT attorneys in their workplace, while only seven percent of lesbian and gay attorneys reported the same.  In light of the gravity of the harm of discrimination, the law schools’ stance is particularly important and should be protected.

Finally, amici note that the rapid surge in nondiscrimination laws and the military’s significant influence in society both make the law schools’ antidiscrimination stance particularly worthy and deserving of constitutional protection.  Sixteen states and the District of Columbia now prohibit anti-gay discrimination in employment and other areas.  Over 400 of the Fortune 500 companies prohibit discrimination on the basis of sexual orientation.  Because of the rapid change and ongoing social tension regarding gay rights, measures such as the Solomon Amendment should not be permitted because they force the government’s values upon a robust public dialogue.  Since the military is the nation’s largest employer, with over 2 million workers, it is a particularly important target at which the law schools direct their nondiscrimination message.  Just as President Truman’s decision to end racial desegregation of military units influenced public attitudes more than half-century ago, amici hope that law schools may goad the military into leading the way toward equal treatment of lesbians and gays in the military and in society.  The amici urge that law schools should be free to express their nondiscrimination message in attempt to achieve that goal.

By Harold Eugene Oliver III, George Washington University Law School

Amici of various Harvard Law School Professors put forth the following arguments in support of FAIR: (1) The Solomon Amendment bars only anti-military policies; it does not give military recruiters a special right to disregard neutral and generally applicable recruiting rules; and (2) Sound principles of judicial restraint counsel that this Court should resolve the question of statutory coverage before turning, only if necessary, to constitutionality.

A collection of faculty members from the Harvard Law School have written this amicus brief on behalf of Forum for Academic and Institutional Rights, Inc. (FAIR) in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.  Before the Solomon Amendment, Harvard—like many other law schools—had not allowed the military to utilize its Office of Career Services (OCS) due to the discriminatory employment practices of the military.  However, Harvard did not deny the military access to its facilities; the military could use Harvard’s facilities for recruiting if they had been invited by students or student groups.  After the government threatened to pull funding in 2002—stating this practice did not meet the requirements of the Solomon Amendment—Harvard was forced to change their policies and allow the military to use its OCS.  The authors of this brief are writing because they are troubled by the military and government’s actions, believing them to be inconsistent with the principles of academic freedom and the actual language of the Solomon Amendment.

The faculty’s first major argument is that the Solomon Amendment only applies to schools with an “anti-military” policy that prevents the military from recruiting on campus.  They argue that the law school’s policy does not fall into that classification since it does not specifically target the military and, therefore, they did not violate the Solomon Amendment.  Instead of focusing on preventing military recruitment, they argue that Harvard’s anti-discrimination policy is in the same vein as other law school policies such as those that prohibit when employers can contact students or regulations about their hiring process—all of which are legal.  They argue that if the military did not want to follow the anti-discrimination policy than they should do what any employer does when they do not want to follow one of Harvard’s policies—they can choose not to recruit there.  The Solomon Amendment did not intend, according to the authors, to grant the military special privileges in recruiting that even other federal agencies do not have; instead it only intended to prevent clear anti-military or anti-ROTC policies from being promulgated.  Additionally, the authors suggest that the Department of Defense’s (DoD) regulations favor their interpretation of the Solomon Amendment; the DoD’s regulations state that the Solomon Amendment’s funding restrictions do not apply to schools that are applying the restriction keeping the military off-campus to all employers.  This is the case with the law school’s anti-discrimination policy; it is being applied to all employers recruiting on their campus.  As such, this policy is a neutral policy—as opposed to an anti-military one—and its enforcement does not violate the Solomon Amendment.

Their second major argument is the Solomon Amendment only mandates “access” to law schools for recruitment purposes; it does not demand equal access to these schools and any suggestion that it does ignores both the text of the Amendment and its history.  To the authors, the text of the Solomon Amendment may not “prohibit or prevent” military recruiters from having access to campus resources.  The text says nothing about a law school having to give the military every possible resource available.  The legislative history also suggests this; as Solomon himself argued that this Amendment would only apply to schools that had “barred” the military from recruiting on their grounds.  They also suggest that there is a massive disparity in DoD regulations on this issue and their litigating position.  DoD regulations state that schools only have to prove that access is “equal in quality and scope” when the school is not providing access; a far cry from the permanent requirement for equality that the DoD is arguing for in its litigation.  As a result of this, the law schools in question could not have violated a regulation that does not exist and the Solomon Amendment should not be applied in this case.

Since the Solomon Amendment only applies to anti-military policies—not neutral and universally applied guidelines—and that it only demands access, not equality, the Harvard Law School faculty argues that the Supreme Court should rule in favor of FAIR and prevent the federal government from pulling funding as a result to the schools’ enforcement of anti-discrimination policies.

By Steven Briggs, George Washington University Law School

Amici of various states (Texas, Alabama, Colorado, Delaware, Florida, Indiana, Kansas, Michigan, South Dakota, Utah, and West Virginia) put forth the following the following arguments in support of the Government: (1) Subjecting the Solomon Amendent's equal-access funding condition to strict scrutiny could have far-reaching consequences for many state laws designed to influence university conduct; and (2) The Solomon Amendment is a constitutional exercise of Congress's power to raise armed forces for our common defense.  

Texas’s and fellow amici states’ main concern is that affirming the lower court’s decision would set a precedent that could undermine state control of public universities.  Many of the state statutes regulating a wide range of in-state university activities are conditional funding statutes which are substantially identical to the Solomon Amendment.  The States fear that if the Solomon Amendment is subjected to strict-scrutiny review, regulation of state universities may be jeopardized.

The lower courts subjected the Solomon amendment to strict-scrutiny review, which, as the name implies, is a difficult standard for the government to meet.  In order for a law to survive strict-scrutiny review, a government must demonstrate an overriding interest in regulating the issue in controversy.  In addition, the government must show that the challenged law is narrowly-tailored in order to achieve the best possible ends with the least possible harm to important constitutional rights.  Texas and its fellow states argue that the Supreme Court should apply a less strict, more deferential standard.  Failure to do so may raise the possibility of challenges to a variety of state regulations of higher education.

The states cite many examples of regulations that could be affected.  For example, Texas has a statute preventing universities from discriminating against admitting home-schooled children, under pain of losing state funding.  Several of the other amici states have similar statutory provisions.  Other states require universities to follow admission criteria set by state education boards.  Texas admits that these laws typically apply to public state universities which receive state funding.  Yet it notes that the lower court’s decision does not distinguish between public and private universities which receive state funds.  If anything, Texas argues that public universities will be more susceptible to challenges of state controls, because public universities are legally considered instruments of the state.  Consequently, they are bound by more constitutional limitations than are private universities.  The core of the amici states’ concern is that a state university faculty may decide, for instance, that they do not wish to endorse a message that home-school education is an equally valid education.  If the Supreme Court holds that Solomon Amendment-like statutes must past strict-scrutiny review, university faculty may easily challenge a variety of state mandates.

The amici states demonstrate many other standard requirements implemented through conditional spending laws.  Many states require that graduating students complete at least a minimal study of the state’s and American history.  Many states follow the Federal Government’s lead in requiring that enrolled students register with the selective service.  Texas and other states also condition state funding on recruitment programs that cooperate to fill state needs such as placing Department of Transportation jobs, or recruiting medical students to rural areas.  The States argue that such recruiting programs inherently view the recruiting and job replacement process as an inherently commercial activity, not an expressive activity as FAIR argues.  Like the home-school statute, these statutes could be easily challenged if the Supreme Court requires strict-scrutiny review.

In something of an ironic twist, the States raise the concern that state statutes preventing discrimination might be jeopardized by a strict-scrutiny review requirement.  Though the anti-discrimination statutes have withstood repeated litigation, the amici note that no challenge has yet been brought on expressive association grounds.  A Supreme Court victory for FAIR on those grounds may provide a new legal argument to challenge these statutes.  Finally, the States observe that many states pass accreditation requirements to prevent degree mills from damaging legitimate educational institutes.  They are concerned that a non-accredited law school faculty might argue that requiring state permission to call themselves a “law school” would impair their expression of a chosen message.

The States also argue that none of the above examples, nor the Solomon Amendment at issue in the current litigation, has a goal of suppressing free speech.  Instead, the States assert legitimate government interests.  In the present case, there is an interest in maintaining an all-volunteer military, which the Federal Government deems requires equal access to campus for military recruiters.  The state statutes and the Solomon Amendment do not prevent educational institutions from expressing disagreement with government policies.  And if universities wish to take a stronger stance, they are free to do so by simply declining to accept government funds.

The States also explain why they think the Supreme Court’s holding in Boy Scouts of America v. Dale does not require a holding in favor of FAIR.  The Supreme Court in Dale struck down a New Jersey law banning discrimination on the basis of sexuality in areas of public accommodation, including those often used by the Boy Scouts.  It held that the Boy Scouts’ Constitutional right to expressive association was violated when they were required to admit an openly homosexual scout leader whose presence the Boy Scouts deemed contrary to the organization’s message.  In the present case, FAIR argues that the Solomon Amendment places law schools in essentially the same situation of being required to express a message contrary to their beliefs.  The States argue that the two cases are different because the Boy Scout leader would have been a permanent member, whereas military recruiters are transient and not perceived to be members of the law schools nor are perceived to speak for the law school.

In one last argument, the States note that the Constitution gives Congress the power “To raise and support Armies” and carry on all other military activities.  This power has been found broad and sweeping in the past.  Congress even has the power to conscript civilians into military service against their will.  It also can require businesses to support war efforts. If Congress has the power to conscript, the States argue it must surely have the lesser power of requiring that law schools either provide equal recruiting access or forfeit their government funding.

By Harold Eugene Oliver III, George Washington University Law Schoolp>

Amici American Civil Rights Union (ACRU) put forth the following the following arguments in support of the Government: (1) Does this Court have subject matter jurisdiction to decide this case on the issue raised by the Plaintiffs at trial, Respondents here?; (2) Did the Court of Appeals err by treating this as a First Amendment case, rather than recognizing that it is, in fact, a spending powers case?; (3) Did the Court of Appeals err by concluding that the Respondents suffered any actionable harm in this case which can overbalance the harm to the US military?; and (4) Did the Court of Appeals err in other ways whose cumulative effect is that its judgment should be reversed and remanded? 

The American Civil Rights Union (ACRU) is writing this amicus brief on behalf of the petitioners in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).  The ACRU is a educational and legal charity dedicated to advancing civil rights and addressing basic constitutional issues.  In this brief, they present four major issues in support of Rumsfeld’s case: 1) the Court lacks subject-matter jurisdiction, 2) the Court of Appeals erred in considering this case a First Amendment issue, 3) the Court of Appeals erred in concluding that the harms suffered by FAIR outweighs the harm to the US military, and 4) the Court of Appeals erred in ways that should result in this case being reversed and remanded to the lower court. 

While subject-matter jurisdiction was not a question brought up in the Supreme Court’s grant of certiorari, subject-matter jurisdiction is an issue that can be brought up at anytime.  The ACRU contends that a party must establish some “specific injury” above and beyond an average complaint and that FAIR did not meet this requirement.  Their claim is that FAIR did not suffer a specific injury because there is no evidence that any individual suffered either directly or indirectly from the military’s “don’t ask, don’t tell” policy.  While law schools have claimed that they have had to adjust their non-discrimination policies as a result of the Solomon Amendment, the ACRU argues that the federal government did not force them to change their policies and the fact that the schools voluntarily self-inflicted the “injury” by changing their policies is not grounds for federal subject-matter jurisdiction.  Thus, according to the ACRU, the court should dismiss this case for lack of subject-matter jurisdiction.

The ACRU’s second major contention is that Rumsfeld v. FAIR is not a First Amendment case—as the Court of Appeals had believed—but a Spending Powers case.  The Spending Powers clause concerns Congress’s ability to regulate public spending.  The ACRU compares withdraw of federal funding to universities that do not allow on-campus military recruiters to the legislation which withheld federal funding for states that did not raise the drinking age to 21 (South Dakota v. Dole) or those that did not lower the speed limit on highways to 55 MPH (Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989), cert denied. 493 US 1070 (1990)).  These cases—when combined with the tougher constitutional requirements of the Tenth Amendment (regarding state’s rights) that was applied—leads the authors of the brief to believe that Rumsfeld v. FAIR should be considered a Spending Powers case and, as such, constitutional.  Lastly, the ACRU discusses the majority opinion in Grove City College v. Bell (where the federal government tried to force Grove City College to abide by the nondiscrimination provisions of Title IX) in which the relationship between the First Amendment and Spending Powers with regards to institutions of higher learning.  It stated that Congress could attach conditions to the disbursement of federal funds and that educational institutions did not have to accept such funds—nor would such restrictions violate the First Amendment rights of either the school or its students.  As a result of this precedent, the ACRU argues that FAIR is not entitled to relief in this case.

The third issue in ACRU’s brief is that the Court of Appeals erred in its conclusion that FAIR suffered a harm that overbalanced the harm suffered by the military as a result of this decision.  They argue that this decision will hamper the military’s recruiting efforts during a “war” in which it has been relying entirely on an all-volunteer force.  After showing that this current military conflict is tantamount to a declared war, the authors argue that since FAIR suffered only a self-inflicted harm and the military has been impaired during a time of war the injunction that the Court of Appeals granted to FAIR should have been denied.

The fourth and final issue that the ACRU brings up in this brief is that the Court of Appeals made numerous smaller errors which leads to its conclusion being in error.  The most important of these errors to the ACRU was the court’s handling of FAIR’s tactic to seek a First Amendment ruling on the military’s discriminatory policies towards homosexuals.  Precedent has ruled that the military’s ban is constitutional and FAIR is engaging in a results-oriented approach.  They suggest that the court’s ruling on this issue in favor of FAIR suggests that they find the Solomon Amendment to be terrible public policy—a belief that ACRU argues should be remedied by the legislative branch, not the judicial.  Second, they contend that FAIR’s “freedom of association” rights were misapplied by the Court of Appeals.  ACRU argues that the schools in question were not forced to associate with the military—they could refuse and not receive federal funding.  Additionally, just because the military recruits on campus—like a lot of major corporations—does not mean that the school is any more associated with the military as it is with the major corporations who may engage in scrupulous behavior.  Nor has any student been forced to associate with the military or any other organization with which they disagree with on a particular issue.  Their final and last argument is that law schools—like any other corporate entity—have no special First Amendment right to prevent those groups from appearing whom it is obligated to allow on its premises by federal law.

As a result of FAIR’s lack of a specific injury that could justify a remedy from the courts and the aforementioned errors in the Court of Appeals’ decision, the ACRU urges the Supreme Court to remand and reverse this case.

By Vladlen David Zvenyach, George Washington University

Amici ACLU, GLAD, Lamda Legal, National Center for Lesbian Rights, and People For the American Way put forth the following the following arguments in support of FAIR: (1) The Solomon Amendment constitutes an unconstitutional condition; (2) The Solomon Amendment compels respondents to assist in disseminating the recruitment message of military employers; (3) The Solomon Amendment penalizes respondents based on their viewpoint that military employers should not be as highly regarded as other employers because of their discriminatory employment policies and (4) The record does not show that the Solomon Amendment has a constitutionally sufficient justification.

Amici advance three major arguments: (1) that the Solomon Amendment unconstitutionally “commandeers” law school recruitment program resources; (2) that Congress’s imposition of the Solomon Amendment constitutes viewpoint discrimination; and (3) that the Solomon Amendment cannot survive strict scrutiny review. 

The first argument rests on a First Amendment right “not to speak,” or at least a right to “choose a message.”  Amici argue that the Solomon Amendment forces Universities to “disseminate the recruiting messages of military employer.”  In support of this argument, amici cite to three significant cases. 

First, in Wooley v. Maynard, the state of Virginia required drivers to display the State’s motto, to which the Maynards objected, on the license plate.  The Supreme Court held that the Maynards could not be forced to serve as a mobile billboard for a government message they didn’t support.  According to the amici, the Supreme Court’s decision turned on the fact that the “government commandeered a speaker’s resources – the Maynards’ automobile – to disseminate the government’s message.” 

Second, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down a Florida law that guaranteed political candidates a “right to reply” to critical newspaper editorials.  The Miami Herald argued that the “right to reply” law violated the Herald’s First Amendment rights, because the law impermissibly interfered with the Herald’s editorial control.  The Supreme Court agreed, holding that “[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials –whether fair or unfair – constitute the exercise of editorial control and judgment.”   The amici argue that this case stands for the proposition that commandeering of inherently “communicative resources” is prohibited under the First Amendment.  

Third, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, (in which one of the amici, GLAD, was counsel), the Supreme Court held that a parade organizer could exclude a contingent of gay marchers, because the government cannot “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” The choice of a parade organizer to select the content of her messages, amici argue, is an important example of when the Supreme Court protected the right “not to speak” from government control.

 When applying these cases to the Solomon Amendment, the amici argue that the schools’ recruitment programs possess a right “not to speak” in such a way as to suggest that the schools support the institutions.  The Solomon Amendment acts as an attempt by the government to commandeer of the recruitment programs, which is impermissible under Wooley, Tornillo, and Hurley.

The amici also distinguish a case from last year’s Supreme Court term, Johanns v. Livestock Marketing Association.  In Johanns, the Supreme Court held that federal taxpayers must pay taxes, even where taxpayer disagrees with a specific message.  The Johanns case is different than the present case, amici argue, because

[T]his case does not involve compelled funding of government speech. The government has levied no tax on Respondents as a means of compelling them to participate in the dissemination of the recruitment messages of military employers.  Rather, it has commandeered Respondents’ recruitment programs as a means of doing so.

The second major argument of the amici is that the Solomon Amendment impermissibly discriminates against a specific viewpoint, namely the viewpoint that “military employers should not be as highly regarded as other employees because of their discriminatory employment policies.”  In support of this argument, the amici point to the fact that the Solomon Amendment does not apply to schools that “have a longstanding policy of pacifism based on historical religious affiliation.”   Additionally, the amici point to legislative debate in Congress to demonstrate that the Solomon Amendment was not drafted to improve military recruiting, but rather to punish Universities that express disapproval of the military’s discriminatory employment practices.  Specifically, the amici quote Rep. Richard Pombo (R-CA), a sponsor of the Solomon Amendment, as saying:

These colleges and universities need to know that their starry-eyed idealism comes with a price.  If they are too good – or too righteous – to treat our Nation’s military with the respect it deserves . . . or to afford our military the same recruiting opportunities offered to private corporations – then they may also be too good to receive the generous level of taxpayer dollars presently enjoyed by many institutions of higher education in America.

The third argument of the amici is that the Solomon Amendment cannot survive strict scrutiny of its justifications.  Because the government provided little more than “conclusory assertions in the legislative history of the Solomon Amendment suggesting that military readiness is furthered by access to recruitment programs [that were] neither supported by data nor specific to the law school recruitment programs that are at issue here,” the amici contend that there is no compelling governmental interest advanced by the Solomon Amendment.  Insufficient justification, amici argue, is fatal to the Solomon Amendment.

In summary, the amici argue that the Solomon Amendment improperly marshals law school recruitment program resources into allowing military recruiters against their will.  Such an action constitutes a deprivation of the right “not to speak” and is therefore violative of the First Amendment.  In addition, because the Solomon Amendment is aimed at those who disagree with the military’s “don’t ask, don’t tell” policy, it is an unconstitutional discrimination of a particular viewpoint.  Finally, if the law is unjustified, it cannot survive First Amendment scrutiny, and must therefore be struck down.

By Vladlen David Zvenyach, George Washington University

The brief amici curiae of Robert A. Burt, et al. puts forth the following the following arguments in support of FAIR: (1) The Department of Defense has violated the faculty members' right to academic freedom; (2) The Department of Defense has suppressed the faculty members' freedom of association; and (3) The Department of Defense failed to introduce any evidence that its recent coercive conduct is necessary to achieve any governmental purpose.

In 1972, Yale Law School (YLS) instituted a Non-Discrimination Policy (NDP) barring discrimination on the basis of religion, race, sex or national origin.  In 1978, the YLS expanded the NDP to “sanction” all employers who in any way discriminate on the basis of “age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, sexual orientation, or the prejudice of clients.”  Since 1978, the Department of Defense refused to sign a pledge that it would abide by the Non-Discrimination Policy, and as such, has not been able to use the YLS Career Development Office’s services.  Instead, YLS allowed military recruiters access but not assistance to recruit Yale Law students.  When the Solomon Amendment passed in 2002, the YLS faculty filed a complaint in the United States District Court for the District of Connecticut. Burt v. Rumsfeld, 354 F. Supp. 2d 156 (D. Conn. 2005).  YLS won.  

In the amicus brief, YLS argues that the Solomon Amendment violates the faculty’s right to academic freedom and that the Solomon Amendment violates the First Amendment right to disassociate from discriminatory practices.  Finally, YLS argues that in any event, the Solomon Amendment does not advance any governmental purpose.

As amici, YLS argues that the First Amendment guarantees a heightened level of protection against laws that interfere with academic freedom.  In support of the argument, YLS cites to language in Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (“The essentiality of freedom in the community of American universities is almost self-evident.”), Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978) (an affirmative action case), Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (another affirmative action case), and Regents of the University of Michigan v. Ewing, 474 U.S. 214, 226 n.12 (1985).  From these cases, YLS argues that the First Amendment guarantees a level of protection from government interference with the policies of the Law School.  Thus, the Solomon Amendment is unconstitutional.

YLS’s second argument, that YLS faculty members have a right to expressive dissociation, is grounded in two major Supreme Court cases: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) and Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000).  In Claiborne, the Supreme Court found that the NAACP’s decision to boycott racist merchants was constitutionally protected by a First Amendment freedom to dissociation.  In Dale, the Supreme Court held that the First Amendment protected the Boy Scouts’ right to exclude a Boy Scout leader on the basis of his sexual orientation. 

The main thrust of the YLS amicus brief is that the First Amendment covers not only the choice of whom one associates with (as in Dale) but also the act of disassociating oneself from another (as in Claiborne).  YLS argues that the Non-Discrimination Policy embodies a choice by the Yale Law School Faculty to disassociate itself from the military’s discriminatory policies, and that this choice is protected under the First Amendment.  The Solomon Amendment’s coercive effect is therefore unconstitutional. 

YLS’s third argument is that the Department of Defense cannot prove that the Solomon Amendment actually achieves any governmental purpose.  They point to the specific evidence presented in both the FAIR case and the original Burt case, supra, to demonstrate that the government “introduced no evidence that its recruiting of lawyers was either inadequate before its recent coercive conduct, or improved because of it.  To the contrary . . . the only evidence in the Burt case proved that the DOD’s coercion resulted in no benefit to the Government’s recruiting efforts.”  YLS rejects each of the Government’s stated justifications because the Solomon Amendment is more restrictive than is necessary to achieve higher recruitment. 

Ultimately, YLS argues that the Solomon Amendment simply goes too far in restricting its right to choose who it assists in the recruitment of its students.  At bottom, YLS argues, the Solomon Amendment impermissibly tramples on the right to expressive disassociation and the sacrosanct nature of academic freedom.  Without sufficient justification, such an imposition is unconstitutional. 

By Joshua Adam Teitelbaum, George Washington University Law School

This brief of various former military generals puts forth the following the following arguments in support of the Government: (1) The Government's compelling national security interest in an educated and capable officer corps requires the ability to recruit on campus; and (2) The Court of Appeals' constitutional analysis is fundamentally flawed.

This amicus brief was submitted by "former top-ranking officers and civilian leaders of the United States Army, Navy, Air Force, and Marine Corps, and the Department of Defense who are deeply interested in this case and its impact on the quality of our nation's officer corps and the military's ability to fulfill its vital missions." This collection includes both conservative and progressive individuals. These military officers include: General Wesley Clark, General Hugh Shelton (Chairman of Joint Chiefs of Staff under Clinton), General Eric Shinseki, and General Anthony Zinni.

The amici argue: (1) The military needs equal access to students on university campuses to raise an effective military; (2) The Solomon Amendment doesn’t implicate the First Amendment’s guarantees of freedom of speech and association; and (3) Even if the Solomon Amendment did implicate the First Amendment, the Solomon Amendment would easily pass the appropriate Constitutional test.

1) The military needs access to students for the purposes of recruitment equal to that of other employers because it is essential to their mission in raising an effective military. The amici argue, "[w]ithout the ability to recruit and train college and university educated individuals, the military cannot maintain the high quality of its officer corps,"and there is no alternative source to recruit the nation’s best and brightest than college campuses. Without access to these students that is equal to that given to other employers, the military is at a competitive disadvantage – one that is decisive in many instances. Other employers have a visible presence on campus because they find it is an effective recruitment tool, and so does the military. To deny the military equal access prevents it from fulfilling its governmentally mandated function of raising an effective military, which the Solomon Amendment attempts to further.

2) The Solomon Amendment doesn’t implicate the First Amendment’s guarantees of freedom of speech and association. First, and most oft repeated by the military officers, is that they believe the Solomon Amendment is a voluntary choice for universities. They argue, "[t]he equal access condition applies only if institutions voluntarily choose to receive the specified federal funding." This argument implies that if they wanted to send a message by restricting access to military recruiters on campus, universities need only refuse federal funding. Second, because the receipt of federal funding is voluntary, there is no compelled association by the university with the military. Moreover, it is illogical to argue that providing military recruiters equal access implies the university’s agreement with military policy, just as a private law firm’s presence on campus does not imply that a university agrees with some policy of that private law firm. The amici do not address the agrument that all other employers are required by universities to sign non-discrimination hiring policies that the military does not sign. Finally, the compelled speech doctrine is triggered only when the government compels a speaker to convey a message that is at odds with the speaker’s beliefs. The Solomon Amendment doesn’t compel speech because universities have a choice, and even when they do allow military recruiters on campus, their presence does not imply that the university agrees with their hiring policy.

3) Even if the Solomon Amendment did implicate the First Amendment, the Solomon Amendment would easily pass the appropriate Constitutional test. The Supreme Court previously held in U.S. v. O’Brien that “regulation of conduct that imposes an incidental burden on expression is constitutional so long as it furthers a substantial governmental interest that is unrelated to the suppression of free expression and that would be achieved less effectively absent the regulation.” Next the amici argue that there is no governmental interest more compelling than ensuring the nation’s security by recruiting qualified men and women for the military. The Solomon Amendment easily passes an intermediate scrutiny test.

By Daniel Kotler, Harvard Law School

The Servicemembers Legal Defense Network (SLDN) puts forth the following the following arguments in support of FAIR: (1) The Court's military deference cases have no application here because of the nature of the congressional action under review; and (2) Regardless of deference, this Court cannot ignore the fact that neither the Government nor it amici have shown that the Solomon Amendment is necessary--and no broader than necessary--to serve a compelling military need.

The Servicemembers Legal Defense Network (SLDN) is an organization which provides assistance for individuals affected by the "Don't Ask, Don't Tell" policy and which works to change that harrassment and discrimination in the military. SLDN's amicus curiae brief addresses the question of whether the Third Circuit correctly held that the Solomon Amendment imposes an unconstitutional condition on federal funding.

I. First, SLDN argues that the Third Circuit was correct not to extend military deference to Congress's judgment in enacting the Solomon Amendment. Although SLDN concedes that the Court extends great deference to Congress's judgment on military matters, SLDN emphasizes that the Court does not just automatically defer in any circumstance where Congress invokes military rhetoric. SLDN provides three reasons why the Solomon Amendment should not be subject to military deference:

A. Military deference applies only to military matters, whereas the Solomon Amendment burdens the First Amendment rights of civilians in civilian spaces. The Court has applied ordinary First Amendment analysis, rather than any deferential standard, when reviewing military related restrictions on civilian speech.

B. The Court defers to Congressional judgment on military matters because the Court does not have the expertise to evaluate military judgments, and because the Constitution vests authority to control the military with Congress and the Executive, not the Courts. The Court does not defer when the matter does not fall within the military's unique expertise. The Solomon Amendment does not relate to matters of military expertise; rather the recruitment of university students is a matter the judiciary is capable of considering on its own. Accordingly, there is no need for deference by the Court.

C. The Court grants deference only to Congress's considered empirical judgments. In the case of the Solomon Amendment, however, Congress made no empirical judgments about military matters. The legislative history of the Solomon Amendment indicates that the purpose of the Solomon Amendment was not military needs but to punish universities. See, e.g., 140 CONG. REC. H3863 (daily ed. May 23, 1994).

II. Finally, SLDN explains that even when the Court has deferred to military judgment, the Court has still carefully assessed Congress's purpose and chosen means. Because the Government has produced no evidence that the Solomon Amendment satisfies, even in the judgment of Congress, a military need, the Solomon Amendment lacks a compelling justification for its intrustion on the First Amendment, and is therefore unconstitutional.

By Marina Torres, Stanford Law School

The Boy Scouts of America put forth the following the following arguments in support of the Government: (1) The the tests for determining constitutional protection of expressive association; and (2)The public forum analogy. 

The Boy Scouts of America stress in their brief that they are mainly interested in upholding both the letter and the intent of a previous decision, Boy Scouts of America v. Dale, which protected the right of the Boy Scouts to choose their leaders. The brief takes the position that the argument against the government – that the facilitator of free speech would then be believed to, through such facilitation, endorse the speech of participants – is faulty. Amici believe that the facilitation of the forum only grants the opportunity for free speech, not an endorsement of the content of such speech. Just as employers are not identified with a law school because of their recruitment there, a law school is not identified with the employers in the same fashion. Free speech isn’t violated by the position taken by the gov’t, as employers do not interfere, nor do they seek to interfere, with the free speech of law schools.

The brief alleges that Dale set forward a framework for the constitutional protection of expressive association. Applying this framework, it’s clear that law schools are clearly to be considered expressive associations; it’s also clear, however, that employers are not seeking inclusion as members of law schools. By appearing at law schools in their recruitment efforts, employers are only representing themselves, not their association with the school.

In addition, the military’s recruitment effort at law schools can be said to fall under a compelling state interest. An expansion of the access that students have to potential employers also qualifies as a compelling state interest.

By William Wetmore, George Washington University

The CATO Institute puts forth the following the following arguments in support of FAIR: (1) The law schools assert protected associational rights; and (2)The Solomon Amendment is an unconstitutional condition. 

The CATO institute argues that the U.S. Supreme Court has long recognized that the First Amendment is “the indispensable condition of nearly every other form of freedom.”  Justice Holmes, in his dissent in Abrams v. U.S, best postulated the theory that the First Amendment is “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”  For over 40 years, the Supreme Court has recognized an individual’s right under the First Amendment to freely associate in order to advance shared ideas.  According to the CATO institute, “Protecting the freedom to associate secures two key benefit. First, it “preserves political and cultural diversity and … shield[s] dissident expression from the majority.” Second,  by ensuring wide dissemination of information, the First Amendment exposes error and allows individuals and government to avoid unsound ideas more effectively and efficiently, illuminating ideas that might otherwise be ignored.  To secure these benefits, the First Amendment rejects a “paternalistic approach” to governance of the marketplace of ideas.”

In their brief the CATO institute explains,  “while the government in this case pretends to take the side of free speech, contending that the Solomon Amendment ensures student access to a greater quantity of information than would exist in its absence,” that position is ”patently paternalistic.”  They add that, despite the government’s claim that “members of Congress and the executive branch understand how to maximize the contribution of individual private educational associations to the public welfare much better than the private professional educators whose interests are at issue here…Legal protection for the ‘marketplace’ of ideas rests on a different presumption.” According to the CATO Institute, that presumption rests on “the combined efforts, tactics, and resulting collision of a multitude of individual private sector speakers and associations, not the ministrations of official overseers, will maximize the quality and diversity of information available to the informational marketplace.”

The Supreme Court in Boy Scouts of America v. Dale recognized that “[g]overnment actions that may unconstitutionally burden” the freedom of association “may take many forms, one of which is intrusion into the internal structure or affairs of an association like a regulation that forces the group to accept members it does not desire.”  The CATO brief explains that Dale and related decisions “established that the freedom to associate, if it is to secure a meaningful right to translate principles into concerted action and influence, must include the freedom from any governmental conduct that seeks to intrude upon the internal structure or affairs of the association.”  In Dale, the court ruled that “[t]he fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection.” 

CATO praises the respondents for, much like the Boy Scouts in Dale, choosing a “moderate mode of educational expression.”  They explain “[i]t is a mode of expression that does not penalize disfavored views expressed within the student body.  It does not shame and marginalize student speakers whose campus speech is disfavored.  Instead of proscriptions and expulsions, it employs gentle symbolism to convey respondents’ chosen message.  Rather than target students, it targets a societally powerful outside employer.  And its does so by fighting fire with fire, discriminating against that employer, by barring it from using associational property to solicit students in a discriminatory fashion.  Like the Scouts, respondents’ educational strategy teaches ‘by example.’” 

Because, as the CATO institute argues, “the Solomon Amendment significantly affects the law schools’ rights of expression, it is subject to strict scrutiny.”  The brief argues, “as noted in Dale, the freedom of expressive associations can be trumped by a showing of “compelling state interests, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms.”  It continues, “petitioners must show that their trampling on respondents’ First Amendment rights is justified by a compelling interest, here, recruiting military lawyers.  In addition, the government must show that the Solomon Amendment is narrowly tailored to accomplish that interest.” 

CATO argues that the “petitioners utterly fail to show that the Solomon Amendment is narrowly tailored to achieve such ends.  Nor do petitioners establish that the Solomon Amendment is a necessary means of furthering that compelling interest.  Indeed, the statements of certain members of Congress made during floor debate on the amendment clearly establish that the Amendment is nothing more than a pretext for penalizing respondents’ First Amendment rights of association. " 

The arguments of this amci concludes by suggesting, “The risks of adopting the government’s dismissive attitude toward the First Amendment interests expressed here underscore the stakes of this case.  Any constitutional principle worthy of the name must occupy a sizable field.  Yet, if the government has its way, the rights of expressive association recognized in Dale and similar cases would accord only formal rights to ‘associate.’”

by William Wetmore, George Washington University Law School

The Government puts forth the following arguments in support of the Solomon Amendment: (1) The Solomon Amendment is a carefully tailored exercise of Congress’s authority to provide for the common defense and to raise and support the armed forces ; (2) The Solomon Amendment does not violate the First Amendment right to associate recognized in Boy Scouts of America v. Dale; (3) The Solomon Amendment does not implicate the compelled speech doctrine; (4) The Solomon Amendment is not subject to, but in any event satisfies, the O’Brien standard; and (5) The Solomon Amendment does not impose an unconstitutional condition.

The Government argues that "Article I of the Constitution vests Congress with the power to 'raise and support' military forces for defense of the United States."  In a world of growing complexity, "the military has placed increasing emphasis on recruiting students from colleges and universities. At times, however, institutions of higher education have sought to restrict campus recruiting by the military." In 1994, according to the Government's brief, Congress enacted the Solomon Amendment to "to encourage institutions of higher education to provide access to military recruiters." The law stipulates that “[n]o funds available to the Department of Defense may be provided by grant or contract to any institution of higher education that has a policy of denying, or which effectively prevents, the Secretary of Defense from obtaining for military recruiting purposes entry to campus or access to students on campuses.” 

The U.S. Court of Appeals for the Third Circuit, according to the Government, erred in ruling that the Solomon Amendment violates the First Amendment. The Solomon Amendment promotes the government’s interest in recruiting the most talented men and women for the military, while at the same time respecting the legitimate interests of educational institutions. The Amendment is a condition on funding, not a direct mandate.  The measure allows educational institutions to determine the level of access that recruiters, including military recruiters, receive.  It asks only that, in exchange for supporting the education of an institution’s students, the federal government should have an equal opportunity to recruit the very students whose education it has supported. 

The government further argues, that no decision by the U.S. Supreme Court supports the court of appeals’ view that an educational institution may voluntarily associate itself with the government’s money, and then claim a First Amendment right not to associate with the government.  The sole decision cited by the court of appeals to support its right-to-associate holding is Boy Scouts of America v. Dale.  Dale, however, provides no support for that court’s holding.  The court of appeals held that the Solomon Amendment implicates the compelled speech doctrine because respondents disagree with Congress’s policy on the service of homosexuals in the military.  But the Solomon Amendment does not seek to induce a law school “personally to express” its agreement with that policy:  law school recipients do not have to “utter” any words of support for the policy; nor do they have to “constantly” carry around “in the public view” a “mobile billboard” displaying support for that policy.  Instead, they must simply provide military recruiters the same access to students that they provide to other employers, if they wish to continue to receive federal funds. 

The compelled speech doctrine applies only when a party “is obliged personally to express a message he disagrees with.” The Solomon Amendment does not violate the compelled speech doctrine because it does not force colleges or universities to express any support for the restrictions on service in the military by homosexuals.  In addition, the Solomon Amendment does not affect the criteria for determining an educational institution’s internal composition.  Recruiters for outside employers are not members of an educational institution; their presence on campus is temporary and episodic, and their function is to recruit persons for employment outside school.  

The Solomon Amendment is not subject to the standard for the regulation of expressive conduct established in United States v. O’Brien.   However, the amendment satisfies the O’Brien standard nonetheless.  Under O’Brien, a regulation of conduct that imposes an incidental burden on expression is constitutional “if it furthers an important or substantial governmental interest, if the government interest is unrelated to the suppression of free expression; and if the incidental restriction, on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”  The last component of the analysis does not require the government to pursue the least restrictive means of furthering the government’s interest.  Instead, that component is satisfied when the government’s interest “would be achieved less effectively absent the regulation.”  The Solomon Amendment, argues the Government, clearly satisfies that standard.  The Amendment serves the compelling governmental interest in the recruitment of the most talented men and women to serve in the armed forces; that interest is entirely unrelated to the suppression of ideas; and that interest would be achieved less effectively if military recruiters did not have the same access to students at institutions of higher education as other employers.

The Government concludes by arguing, "The Solomon Amendment does not violate the doctrine of unconstitutional conditions. Any such argument fails at the premise: the Solomon Amendment’s equal access condition is constitutional and would be constitutional even if it were imposed as a direct mandate."

According to the Governement, the modest and tailored funding condition in the Solomon Amendment falls well within the authority of Congress to enact “necessary and proper” laws to carry into execution its powers under the Spending Clause and its other enumerated powers critical to the national defense, and, therefore, the Third Circuit’s holdings are incorrect and rest on a series of legal errors.

Summary of the Amicus Brief for Columbia University, Cornell University, Harvard University, New York University, The University of Chicago, The University of Pennsylvania, and Yale University as Amici Curiae in Support of FAIR

By Joshua Teitelbaum, George Washington University Law School        

The above Universities put forward three arguments in support of FAIR:
(1) The government’s first amendment analysis is wrong as a matter of law; (2) When properly analyzed, the Solomon Amendment is an unconstitutional limitation on a University’s right to free expression; and (3) If upheld, the Solomon Amendment would cripple basic research in the United States with disastrous consequences for universities, the economy and national security.

1) The Government’s First Amendment Analysis is Wrong: The government contends that a federal funding condition is unconstitutional only when Congress aims the condition at the suppression of dangerous ideas, a test established in National Endowment for the Arts v. Finley. If a private university does not want to be bound by the funding condition, then the university can simply decline the funding, the government argues. However, the government’s attitude fails to appreciate what the condition in the Solomon Amendment really is –"a command rather than an inducement." Universities do not have the choice of simply turning down federal assistance. Federal funds support close to 60% of basic research conducted at American universities. Furthermore, if universities were to reject this money, no other institution could come close to filling the void. Industry funds account for only 7% of academic research contributions, nor would the market rush in to fill the void because the research that universities conduct is unique. Nearly three quarters of research done at universities is basic, meaning that its purpose is to be shared and its application may not be easily profitable years, if not decades, down the road. In short, the marketplace doesn’t fund theoretical research, only the federal government supplements the work of the universities. Since universities are dependent upon such funding, they are not in a place to reject it, and the Solomon Amendment is no longer a condition, but a command. When viewed properly, the Solomon Amendment is clearly unconstitutional.

(2)  The Solomon Amendment is an Overly Broad Regulation of Free Speech in the Sphere of Academic Freedom: The Supreme Court in Shelton v. Tucker and Keyishian v. Board of Regents of the University of the State of New York singled out academic freedom for heightened First Amendment protection because the “nation’s future depends upon leaders trained” at universities where they are exposed to a “robust exchange of ideas.” Regulations of academic freedom must be precise. The Universities argue that “any funding condition that coerces compliance, that intrudes on academic freedom, and that doesn’t relate to the purpose of the grant is constitutionally suspect.”  They base this argument on the SC’s previous statement that “the government’s power to condition the receipt of federal funds is particularly limited where the effect is to 'distort [the] usual functioning,' or interfere with the 'accepted usage,' of a traditional forum for expression.” According to the brief, this is exactly what the Solomon Amendment was designed to do, and how the Defense Department viewed it. The amendment requires not simply adequate access to military recruiters, but access equal to that given other employers. The purpose of this language is to prevent universities from “sending a message” (the Defense Department’s words) to their students that the University disapproves of the military’s employment practices. Essentially, the intent of the amendment is to restrict a University’s expression through association by coercing compliance. Such a regulation is unconstitutional. 

(3)  If the Solomon Amendment is Found Constitutional, the Consequences for the Nation’s Universities, Scientific Progress, Economy and Security will be put in Great Danger. The Universities argue further that should the Court find the Amendment constitutional there would be great damage to the United States because American higher education is central to so many other aspects of society. The internet itself began as a network of computer science departments funded by the National Science Foundation, along with loads of other modern perks that would not exist were it not for the basic research conducted at universities funded by the federal government (lasers, Doppler radar, secure credit-card transactions, to name just three). “Roughly one-third of the total value of the NASDAQ stems from federally funded university-based research.” Besides expanding the economy, the military is now increasingly dependent on federally funded university basic research. In defense of this position, the brief quotes then National Security Advisor Condoleeza Rice, two months after 9/11: “The key to maintaining U.S. technological preeminence is to encourage open and collaborative basic research…This is especially true as our armed forces depend less and less on internal R&D for the innovations they need to maintain the military superiority of the US.”

It is important to note that the Universities do not argue that conditioning of federal funds is unconstitutional, but that conditions not of a precise standard and directly aimed at the relationship between the condition and the speech are unconstitutional. They argue that the Solomon Amendment presents universities with the "untenable choice" of either refusing federal funding, thus crippling its ability to fulfill many of its purposes, or succumbing to the government’s command of self-censorship by sacrificing its ability to send its student body a message that the university disapproves of the military’s employment policy. If the government could not command the universities into such a position directly, it may not do so by forcing compliance through conditional funding.