H. RUMSFELD, SECRETARY OF DEFENSE,
et al., PETITIONERS v. FORUM FOR ACADEMIC
AND INSTITUTIONAL RIGHTS, INC., et al.
When law schools began
restricting the access
of military recruiters to their students because of disagreement with
the Government’s policy on homosexuals in the military, Congress
responded by enacting the Solomon Amendment. See 10
U. S. C. A. §983. That provision specifies
that if any part of an
institution of higher education denies military recruiters access equal
to that provided other recruiters, the entire institution would lose
certain federal funds. The law schools responded by suing, alleging
that the Solomon Amendment infringed their First
freedoms of speech and association....
Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools and law faculties. Its declared mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” FAIR members have adopted policies expressing their opposition to discrimination based on, among other factors, sexual orientation. They would like to restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military. The Solomon Amendment, however, forces institutions to choose between enforcing their nondiscrimination policy against military recruiters in this way and continuing to receive specified federal funding.
In 2003, FAIR sought a preliminary injunction against enforcement of the Solomon Amendment, which at that time—it has since been amended—prevented the Department of Defense (DOD) from providing specified federal funds to any institution of higher education “that either prohibits, or in effect prevents” military recruiters “from gaining entry to campuses.” .
FAIR argued that this forced inclusion and equal treatment of military recruiters violated the law schools’ First Amendment freedoms of speech and association. According to FAIR, the Solomon Amendment was unconstitutional because it forced law schools to choose between exercising their First Amendment right to decide whether to disseminate or accommodate a military recruiter’s message, and ensuring the availability of federal funding for their universities....A
The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests”). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.
Nevertheless, the Third Circuit concluded that the Solomon Amendment violates law schools’ freedom of speech in a number of ways. First, in assisting military recruiters, law schools provide some services, such as sending e-mails and distributing flyers, that clearly involve speech. The Court of Appeals held that in supplying these services law schools are unconstitutionally compelled to speak the Government’s message. Second, military recruiters are, to some extent, speaking while they are on campus. The Court of Appeals held that, by forcing law schools to permit the military on campus to express its message, the Solomon Amendment unconstitutionally requires law schools to host or accommodate the military’s speech....
Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. In West Virginia Bd. of Ed. v. Barnette (1943) , we held unconstitutional a state law requiring schoolchildren to recite the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard (1977) , we held unconstitutional another that required New Hampshire motorists to display the state motto—“Live Free or Die”—on their license plates.
The Solomon Amendment does not require any similar expression by law schools. Nonetheless, recruiting assistance provided by the schools often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf. Law schools offering such services to other recruiters must also sende-mails and post notices on behalf of the military to comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled statements of opinion, are subject to First Amendment scrutiny.
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only “compelled” if, and to the extent, the school provides such speech for other recruiters. There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse.
The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
Our compelled-speech cases
are not limited to
the situation in which an individual must personally speak the
government’s message. We have also in a number of instances limited the
government’s ability to force one speaker to host or accommodate
another speaker’s message. See Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) (state law
cannot require a parade to include a group whose message the parade’s
organizer does not wish to send); Pacific Gas & Elec. Co.
v. Public Util. Comm’n of Cal. (1986) (state agency cannot
require a utility company to include a third-party newsletter in its
billing envelope); Miami Herald Publishing Co. v. Tornillo
(1974) (right-of-reply statute violates editors’ right to determine the
content of their newspapers). Relying on these precedents, the Third
Circuit concluded that the Solomon Amendment unconstitutionally compels
law schools to accommodate the military’s message “[b]y requiring
schools to include military recruiters in the interviews and recruiting
receptions the schools arrange.”
violation in each of our
prior cases, however, resulted from the fact that the complaining
speaker’s own message was affected by the speech it was forced to
accommodate. The expressive nature of a parade was central to our
holding in Hurley. We concluded that because “every
participating unit affects
the message conveyed by the [parade’s] private organizers,” a law
dictating that a particular group must be included in the parade
“alter[s] the expressive content of th[e] parade.” As a result, we held
that the State’s public accommodation
law, as applied to a private parade, “violates the fundamental rule of
protection under the First Amendment ,
that a speaker has the autonomy to choose the content of his own
message.” The compelled-speech violations in Tornillo and
Pacific Gas also resulted from interference with a speaker’s
In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.
The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the military’s policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) . In that case, we upheld a state law requiring a shopping center owner to allow certain expressive activities by others on its property. We explained that there was little likelihood that the views of those engaging in the expressive activities would be identified with the owner, who remained free to disassociate himself from those views and who was “not being compelled to affirm [a] belief in any governmentally prescribed position or view.”
The same is true here.
Nothing about recruiting
suggests that law schools agree with any speech by recruiters, and
nothing in the Solomon Amendment restricts what the law schools may say
about the military’s policies. We have held that high school students
can appreciate the difference between speech a school sponsors and
speech the school permits because legally required to do so, pursuant
to an equal access policy. Surely students have not lost that ability
by the time they get to law school....