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Military campus recruiting: compelled speech or free access?

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The Supreme Court yesterday granted review in a case that will require it to revisit a question that has proven difficult to resolve: When does the power of the purse morph into the unconstitutional power to compel speech or association?

At issue in the case of Rumsfeld v. Forum for Academic and Institutional Rights, (FAIR) is the latest version of the so-called Solomon Amendment, which requires colleges and universities that receive federal funds to grant access to military recruiters — access that is “at least equal in quality and scope” to that given to job recruiters for other public and private organizations.

The Bush administration defends the access policy as essential to maintaining an all-voluntary military, “particularly in a time of war.”

The Solomon Amendment, named after its original sponsor, Rep. Gerald Solomon, R-N.Y., was passed in 1994. But the military began enforcing an unwritten “equal access” requirement after the terrorist attacks of Sept. 11, 2001, and Congress wrote that requirement into the law last year.

Military officials and members of Congress were angered by reports that military recruiters on some campuses were picketed or relegated to ROTC offices, or were denied the ability to promote their campus appearances in the same way that other recruiters could.

Universities, and especially some law schools, were treating military recruiters differently because of policies — such as one approved in 1990 by the American Association of Law Schools — against allowing access to recruiters for employers who discriminate on the basis of sexual orientation. The military's "don't ask, don't tell" policy excludes from the armed forces those who engage in homosexual acts or say they are homosexual.

FAIR, which represents 31 law schools and law school faculties, challenged the Solomon Amendment access policy and law in federal court in New Jersey as a violation of the campuses’ First Amendment rights of expression and association. Applying the “strict scrutiny” standard to the policy, the 3rd U.S. Circuit Court of Appeals sided with the law schools and ordered the district court to issue an injunction against enforcement of the law.

The appeals court found that the policy created an “unconstitutional condition” prohibited by the 1972 Supreme Court precedent Perry v. Sindermann, which says that government “may not deny a benefit to a person because of his constitutionally protected interests — especially his interest in freedom of speech.”

The 3rd Circuit acknowledged that under the Rust v. Sullivan line of cases, the government may prefer one viewpoint over another when it creates and funds a certain program. However, it said, “That exception does not apply in our case because the Solomon Amendment does not create a spending program; it merely imposes a penalty: the loss of general funds.”

The 3rd Circuit ruling also found that the Solomon Amendment “violates the First Amendment by impeding the law schools’ rights of expressive association and by compelling them to assist in the expressive act of recruiting.”

In its appeal to the Supreme Court, the Bush administration calls the 3rd Circuit’s decision “seriously flawed.” The Solomon Amendment is “valid spending[-]clause legislation,” says Acting Solicitor General Paul Clement, and compels neither speech nor association. “If institutions do not wish to associate with military recruiters or their speech, they may decline to associate with the federal funding.”

He added that “institutions that voluntarily accept federal funding remain free to protest the military’s policies and to make clear that they do not agree with them.”

The brief by FAIR contends that the penalty contained in the Solomon Amendment “appears to be the single most draconian condition on rights this Court has ever confronted.” Why? Because any university violating the policy faces cancellation of federal funding well beyond Defense Department funds, according to FAIR’s lawyer, E. Joshua Rosenkranz of New York City. “A law school’s policy could jeopardize the particle accelerator or cancer research across the campus.”

In addition, FAIR contends that the Solomon Amendment forces universities to subsidize and spread the word of the military by distributing brochures, posting recruiters’ literature and providing facilities where the military can urge students to join.

Citing compelled-speech cases, including the 1977 case Wooley v. Maynard, Rosenkranz asked rhetorically, “If a state cannot force motorists to display a state motto on their license plates ... then the government cannot force a private institution to display the military’s literature on its bulletin board.”

When the case was before the 3rd Circuit, a majority of judges recused themselves from considering it. No explanation was given, but lawyers involved in the case speculated that the judges may have had connections to law schools that had challenged the policy.

No Supreme Court justice recused when the Court agreed to hear the case yesterday, even though several justices have received speaking fees from universities that belong to FAIR, and even though Justice Ruth Bader Ginsburg’s husband, Martin, is on the faculty of Georgetown University Law Center. The Georgetown faculty is a member of FAIR.

The case will be argued in the fall.


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