Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR) (2006) was a U.S. Supreme Court case that addressed the conflict between government funding and free speech rights at universities. The case concerned about a law called the Solomon Amendment, which required universities to provide military recruiters access to campus facilities, such as career centers, with a risk of losing federal funding.
A group of law schools and academic organizations, (known as the Forum for Academic and Institutional Rights, “FAIR”), sued and argued against the Solomon Amendment. They argued that the Solomon Amendment was violating their First Amendment – and their rights to free speech and freedom of association. They also thought that it required them to be against their will, involved in military recruitment.
The district court rejected the suit. Then third Court of Appeals panel reversed it. The third Court of Appeals held that while schools had the right to fortress funds – in order to elude endorsement from the military that was unwanted, forcing them to make a decision like this was indeed against the Constitution. It was not possible to make them give up this kind of a constitutional right just to receive federal funding.
All in all The Supreme Court ruled that Solomon Amendment did not violate the First Amendment. John Roberts, Chief Justice, reasoned that Solomon Amendment mainly regulates conduct, not speech, and that’s why it was constitutional. Just by allowing military recruiters in universities premises did not automatically indicate that university supported the recruiters. Roberts held directly “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” Also The Supreme Court’s reasoning was that the law itself did not force universities or students to support some viewpoints or agendas. It just required them to allow equal access to military recruiters as other recruiters had to the campus. The ruling confirmed that the government can set terms for being able to get federal funding, as long as the terms won’t coercively infringe institution’s right to free speech.
Moody v. NetChoice states that in case PruneYards and case FAIR’s decisions are based on quite similar arguments. In case FAIR, the court did not object the idea that the university’s refusal to host military recruiters would indeed signal that military recruiters should recognize and admit gays and lesbians. Just like in PruneYards, the Court did not found violation of the First Amendment. The reason was, that it was not likely that military recruiters’ viewpoints “would be identified” with school’s viewpoints. Also just hosting the military recruiters did not interfere or affected enough with school’s own message.
Moody also refers to the case FAIR when it is states that cases which don’t core examples of expressive compilations (FAIR and PruneYard), have there for a big risk of misattribution.
Moody also cited the case of FAIR, and that in that case, according to the Court, schools did not have the right to decline of hosting the military on the basis of it’s hiring practices, because the views of the schools are not expressed when they host interviews: “the schools do not speak when they host interviews”. It again confirms that hosting the military recruiters did not interfere with school’s message enough to be unconstitutional.
In Moody, the case of FAIR was also cited to justify and argue the fact that “the First Amendment allows for behaviour from those who do not express their own views, but provide means for others to communicate.”
So the Supreme Court referred to the case FAIR in Moody v. NetChoice illustrate the First Amendment and its violation. In the case FAIR court held that the requirement that law schools provide military recruiters with the same rights as other employers did not violate the rights of the first amendment of the schools. The court confirmed that such a requirement for hosting military recruiters at the university premises did not force schools to support the military’s message or values.