Rumsfeld v. FAIR
The Forum for Academic and Institutional Rights (FAIR), a group of law schools and professors, sued the Secretary of Defense, seeking to prevent the enforcement of the most recent version of Solomon Amendment, a federal law that requires schools receiving federal funding to give access to military representatives for recruiting purposes. Congress originally passed the amendment in 1994, in response to universities which, citing their non-discrimination policies, prohibited military representatives from recruiting on campus because of the military’s policy of excluding homosexuals. Prior to 9/11, the Department of Defense (DOD) interpreted the Amendment as merely requiring schools to give recruiters access to the campus, but not requiring schools to affirmatively assist the recruiters. After 9/11, the DOD indicated that it interpreted the Amendment to require schools to treat military recruiters in the same way that they treat all other employment recruiters. In 2004, Congress amended the Solomon Amendment to reflect the DOD policy.
The district court denied FAIR’s motion. On appeal, the Third Circuit Court of Appeals reversed, issuing a preliminary injunction against enforcement of the Solomon Amendment. The court held that the law violates the First Amendment by restricting the schools' right of expressive association and by compelling the law schools to assist in the expressive act of recruiting. Even though the law schools have the option of refusing federal funding to further their non-discrimination policies, the court stated that, under the doctrine of unconstitutional conditions, Congress could not require the forfeiture of a constitutional right–especially, the right of free speech–as the basis for receiving federal funds.
Questions Presented:
The Solomon Amendment, 10 U.S.C. § 983(b)(1), withholds specified federal funds from institutions of higher education that deny military recruiters
the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in
holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in
directing a preliminary injunction to be issued against its enforcement.
