Tomorrow’s Argument: Rumsfeld et al. v. Forum for Academic and Institutional Rights, Inc., et al.

Few cases jumble together so many sensitive and controversial issues as Rumsfeld v. FAIR. The case touches on such topics as discrimination against homosexuals, military preparedness in the wake of September 11, the place of gays in the military, and the right to protest the government. It is no wonder that it is one of the most anticipated cases before the Supreme Court this term.

FAIR, which will be argued tomorrow, revolves around a federal statute known as the Solomon Amendment, which conditions federal funding to universities on those universities granting military recruiters the same access to campuses, students, and recruiting resources and services that they give to all prospective employers. At issue is whether the Solomon Amendment violates the First Amendment by preventing universities from enforcing nondiscrimination policies against the military because of its policy of forbidding open homosexuals from serving in the armed forces. Solicitor General Paul D. Clement will argue on behalf of petitioners; E. Joshua Rosenkranz will argue on behalf of respondents. The parties’ merits briefs can be found here.

Background
The Solomon Amendment withholds federal funding from any educational institution with a policy of preventing military representatives from gaining entry to campuses for the purpose of military recruiting “in a manner that is at least equal in quality and scope to the [degree of] access to campuses and to students that is provided to any other employer.” Many universities and law schools have nondiscrimination policies that forbid employers that discriminate on the basis of sexual orientation from using the school’s recruiting resources. Because openly gay persons are not allowed to serve in the armed forces, the effect of such policies is to exclude military recruiters. The Solomon Amendment, therefore, forces educational institutions to choose between enforcing nondiscrimination policies against military recruiters and receiving much-needed federal funding.

In September 2003, the Forum for Academic and Institutional Rights (FAIR), an association of law schools and law faculty, sued the DOD and other federal departments whose funds are restricted under the Solomon Amendment. FAIR claimed the Amendment violated the First Amendment by conditioning a government benefit on law school faculty abandoning their nondiscrimination policies and associating with an employer that discriminates against homosexuals. FAIR sought a preliminary injunction enjoining enforcement of the statute.

It is well established that the government cannot condition a benefit on the forfeiture of First Amendment rights (the “unconstitutional conditions” doctrine); at issue is whether the Solomon Amendment actually is likely to implicate those rights. The district court analyzed the case under the “expressive conduct” doctrine (from the 1968 case, United States v. O’Brien), which calls for intermediate scrutiny when a government law threatens to curtail conduct that is not quite speech per se but is nevertheless expressive of a viewpoint. Intermediate scrutiny asks whether the government action at issue furthers an important government interest that would be achieved less effectively without that action. The district court found that the Amendment survived intermediate scrutiny, and denied the preliminary injunction since FAIR had not demonstrated a likelihood of success on the merits of its case.

The Third Circuit reversed, finding that the “expressive association” and “compelled speech” doctrines were more appropriate. Boy Scouts of America v. Dale (the Supreme Court’s 2000 case overturning a state law forbidding the boy scouts to exclude homosexuals from their ranks) compelled the conclusion that the Solomon Amendment, by forcing law schools to accommodate and actively help military recruiters, would curtail a school’s ability to express its antidiscrimination viewpoint. The expressive association and compelled speech doctrines call for strict scrutiny. Thus, a regulation that either compels speech or expressive association must be narrowly tailored to serve a compelling governmental interest, and must use the least restrictive means of promoting the government’s asserted interest. Since the military has many ways of recruiting beyond going to college campuses (such as buying TV ads), the court concluded that there are less-speech-restrictive means of serving the Solomon Amendment’s government interest of facilitating recruitment. Indeed, the Solomon Amendment has generated so much ill will on college campuses that it might actually be disserving its own asserted interest. The court found that the Amendment failed strict scrutiny, and so the preliminary injunction should be granted. (The court also stated in dicta that even if the expressive conduct doctrine applied, the Amendment would still fail intermediate scrutiny.) The DOD petitioned for certiorari, which was granted.

Underlying nearly every argument in the briefs are the parties’ respective positions on how one should characterize the effects of the Solomon Amendment. Petitioners play it down: the law merely regulates conduct towards military recruiters, and forces schools passively to allow outsiders to express a viewpoint. Schools also are entirely free to turn down government funds if they do not like the military’s message, or to reduce the access they give to all employers. Respondents play it up: the law commandeers law schools and requires them actively to assist in the dissemination of the military’s viewpoint. And schools are not truly “free” to disobey the Amendment, since denial of federal funds would be utterly crippling to any educational institution. How one characterizes the effects of the Solomon Amendment can profoundly implicate the legal conclusions one will draw. The parties implicitly or explicitly urge one characterization over the other on nearly every page of their briefs. Petitioners’ ultimate goal is to argue that no First Amendment rights are even implicated in this case, and that no level of scrutiny applies. Respondents’ ultimate goal is to convince the Court not only that the First Amendment is implicated, but also that the highly protected compelled speech and expressive association rights are implicated, and that the Amendment fails the strict scrutiny that is thereby triggered. There is also a middle road the Court could take: it could find that the expressive conduct doctrine applies, which triggers intermediate scrutiny under O’Brien.

The Doctrines
Petitioners argue that decisions about granting equal access to recruitment programs do not involve speech at all. Not even the expressive conduct doctrine should apply, since (as precedent seems to require) the regulated conduct is not inherently expressive. Denying military recruiters access may be done for reasons not related to communication of an idea, and does not involve an expressive symbol or public protest activity. And since the Amendment also punishes exclusion of military recruiters that is not based on a desire to express an antidiscrimination message, the Amendment is viewpoint neutral, and thus does not warrant strict scrutiny.

Respondents, on the other hand, classify the Amendment’s effects as effectively forcing law schools to propagate and embrace the military’s discriminatory message, implicit in the act of recruiting, that it is desireable to work for an employer that excludes homosexuals. They cite numerous cases that hold that government compulsion to display, bear, or disseminate a particular message is unconstitutional. Petitioners attempt to distinguish those cases, explaining that the law schools are capable of expressing their dissent and protesting the government despite recruiters’ presence on campus. Recruiting programs are merely forums for inviting outsiders to appear temporarily and episodically to express their own views. Indeed, petitioners analogize to Pruneyard Shopping Center v. Robbins, in which the Court held that a private shopping mall that invited the general public onto its property could not ban expressive activity on its grounds. Respondents claim that Pruneyard is inapposite, since that case did not deal with a shopping mall being forced to assist expressive activities in the way the Solomon Amendment forces law schools actively to participate in the dissemination of military recruitment materials.

Thus, petitioners argue, there cannot be compelled speech here because (a) people would not be confused about who is actually behind the government’s message, (b) law schools remain free to rebut or disclaim the message, and (c) the law schools remain free to invite employers who do not discriminate against homosexuals. Respondents discount each one of these arguments. Precedent has never held that free speech rights turn on public confusion over the source of a message. And past compelled speech cases do not establish merely a right to abstain or to express contradictory messages, but to be free from having to abstain or having to contradict at all. Disclaimers, protests, and rebuttals are symptoms of compelled speech, not cures. Moreover, respondents contend, the Amendment is unconstitutional because it forces schools to dilute their message that discrimination against homosexuals is wrong by making them hypocritically assist the DOD. Petitioners contend that there is no inconsistency in letting the military express its own views on campus while the law schools simultaneous counter it.

The arguments in the expressive association arena are very similar. Of note, however, is the battle over the interpretation of the rather recent Dale case. The Dale Court found that the boy scouts, as an institution, express the view that homosexuality was not a desired trait for its scoutmasters, and that by not allowing boy scouts to exclude homosexuals from their ranks, the state law at issue forced the boy scouts to express the opposite opinion. Respondents invoke Dale in support of their position, an obvious irony given Dale’s effect on homosexuals. They claim that the Amendment forces law schools to welcome certain people, the welcoming of whom expresses an opinion contrary to the values the law school holds. Petitioners, on the other hand, attempt to distinguish Dale. First, they argue, Dale dealt with a law that meddled with the internal membership of a group; the Amendment does not affect the internal composition of law schools, but rather affects how schools treat outsiders when they temporarily come to campus. It is analogous to antidiscrimination laws like Title VII, which compels employers to give equal employment access to members of all racial groups. Respondents contend that Dale was decided against a background of cases holding that expressive association rights can be violated in many more indirect ways than altering internal membership (such as by forcing an institution to lend financial support to a political cause). Association rights are implicated whenever the government alters an institution’s “choice of strategic alliances.” Petitioners point out in their reply brief that it is these other cases, rather than Dale itself, that hold this, such that respondents’ appeal to those cases is not persuasive. Respondents also argue that the government’s analogy to antidiscrimination laws is inapt (and, respondents note, somewhat ironic). Those laws are premised on a belief that societal interests in preventing discrimination outweigh private interests in exclusion. Dale, and this case, however, present examples of when the balance tips the other way (since they do not involve invidious discrimination based on suspect classifications like race and gender), which is precisely when association rights have bite.

Second, petitioners argue, Dale held that the compelled association must force an organization to adopt a message contrary to its own. On this topic, the parties mainly reiterate the arguments they make in the compelled speech context. Third, petitioners note that in Dale, the boy scouts had no option but to comply with the state law; in this case, law schools can simply turn down federal funds. In Grove City College v. Bell, the Court held that Title IX (which conditions federal funds on university programs’ adoption of anti-sex-discrimination policies) was not unconstitutional since school programs could simply disregard Title IX and refuse federal funds. Respondents reiterate that refusal of federal funds in this context is simply not a viable option for universities. And whereas Title IX punished noncomplying programs individually, the Solomon Amendment punishes an entire university for one program’s or one subschool’s noncompliance.

Scrutiny
If compelled speech or expressive association rights are implicated, the Amendment is subject to strict scrutiny. Respondents concede that military recruiting is a compelling government interest, but claim that the Solomon Amendment does not serve that interest in the least speech-restrictive way possible. The Amendment was aimed at preventing schools from “restricting campus access.” There is no evidence that without the Amendment military recruiters would be blocked entirely from recruiting at law schools. And so, a statute simply requiring campus access would be sufficient to serve the state interest at stake. Further, as the First Circuit noted, the military has many ways of recruiting without imposing on law schools’ free speech rights, and does not even need law school resources to do this because it is such a well-funded institution.

If petitioners convince the court that the expressive conduct doctrine should apply, the Amendment is subject to intermediate scrutiny, which the government contends it survives. Petitioners assert that, according to O’Brien and its progeny, Congress should be given great judicial deference in its finding that the Amendment was needed to further the interest of recruiting. Moreover, petitioners claim, courts should be especially wary of interfering in military judgment, which is peculiarly for the political branches to decide upon. The government bolsters this argument in its description of the the Solomon Amendment’s history. Petitioners point out that the Amendment was passed by a Congress concerned with military’s urgent need to recruit a volunteer army without unwarranted hindrances in this wartime, post-September 11 era.

Respondents urge that both of these arguments are misplaced. The mere fact that Congress passes a statute does not demonstrate that the statute is justified; petitioners’ argument is just bootstrapping. No piece of legislative history suggests that Congress had evidence of how the military’s recruiting was being affected by law school policies. And deference to the political branches is warranted when the military’s judgment is about managing, organizing, and guiding military troops. The Amendment, on the other hand, questions the military’s judgment about controlling private organizations. The Court is fully competent to question that judgment.

Unconstitutional Conditions
Finally, the parties debate whether the Amendment, if it implicates free speech rights at all, is an unconstitutional condition on the exercise of those rights. Petitioners claim that Congress’s Article I spending power, though not without limits, only runs up against the First Amendment when spending decisions are aimed at the suppression of ideas. Since the Amendment merely regulates conduct, and leaves open room for protest, it does not suppress ideas. Respondents argue that in compelling dissemination of the military’s message, the Amendment squanders law schools’ ability to denounce that message effectively. The Solomon Amendment is also quite clearly an unconstitutional condition, respondents claim, because of the high toll it exacts for noncompliance (possibly hundreds of millions of dollars). Such a penalty is arguably harsher than many criminal penalties a university could face, and so the Amendment essentially acts as a command.

Closing Observations
The government’s reply brief adds little in the way of new arguments. Beyond reiterating the arguments made in the opening brief, it mostly responds to respondents’ characterization of precedent. It also continues to urge the court to play down the effects of the Amendment. A notable new argument in this regard is petitioners’ suggestion that recruiting programs just involve the dissemination of “basic information” in a commercial context, which under Court precedent warrants less speech protection and certainly something less than strict scrutiny.

The case is, no doubt, a close and hard one. Its outcome will depend largely on the Court’s reading of past First Amendment cases that spoke with broad and often ambiguous language. Ultimately, though, the parties are probably right to spend so much of their briefs characterizing the effects the Solomon Amendment has on law schools. Does it present them with a genuine choice, or is it effectively a mandate? Is it asking just for equal treatment of military recruiters, or is it effectively demanding special treatment? Does it appear to be regulating noncommunicative conduct towards military recruiters serving an important government function, or does it appear to be altering the message law schools want to send to the world and their students about the treatment of homosexuals? These questions, which appeal more to intuition than to the nuances of precedent, will surely be the ones really driving the resolution of this case.