FAIR: Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47 (2006)
In the case, Forum for Academic and Institutional Rights (FAIR), as an association representing law schools and faculties, sought a preliminary injunction against the enforcement of the Solomon Amendment, arguing that the Amendment is violating its members’ First Amendment freedoms of speech and association. The Solomon Amendment is stipulating that if the universities and other institutions deny military recruiters “from gaining access to campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer”, 10 U. S. C. § 983(b) (2000 ed., Supp. IV), they will face losing certain federal funds.
Law faculties do not want to provide access to military recruiters. The reason for this refusal was the faculties’ opposition to the military’s policy on homosexuals at the time of the case. The military´s policy called “Don’t ask, don’t tell,” which means that homosexuals are not welcome in the military, and to join the army, homosexuals must remain silent about their sexual orientation.
The District Court disagreed and denied FAIR’s arguments, stating that it was unlikely to succeed upon examination of the merits of the case. The District Court determined that the Solomon Amendment regulates conduct, not speech, and therefore did not violate the First Amendment of the Constitution. Subsequently, the Court of Appeals for the Third Circuit, by majority vote, reversed the decision and remanded the case to the District Court, ordering the issuance of a preliminary injunction.
The question before the Supreme Court is whether the Solomon Amendment infringes the universities’ freedoms of speech and association. In answering that question, the Supreme Court also had to determine whether the Solomon Amendment was regulating conduct or speech of the universities.
Justice Roberts presented the opinion of the Court. The Supreme Court unanimously held that the Solomon Amendment regulates conduct, not speech, and therefore did not violate the law faculties’ freedoms of speech and association.
The first interesting argument in the court’s reasoning was whether the Solomon Amendment’s equal access requirement is satisfied if faculties apply the same policy to military recruiters as they do to other nonmilitary recruiters. This means whether faculties comply with the Solomon Amendment’s requirements if they exclude any other nonmilitary recruiters that violate their nondiscrimination policy. In this matter, the Court determined that it is not about equal treatment of all recruiters; the Solomon Amendment specifically regulates equal access for military recruiters compared to other nonmilitary recruiters. Justice Roberts emphasized this view of the Court, declaring, ‘The statute does not call for an inquiry into why or how the “other employer” secured its access” (p. 56)
The court also took into consideration the will of the legislature by noting that the first version of the Solomon Amendment obligated universities to provide only entry to the campus without specifying any further conditions. When universities started to prevent that entry by restricting it through different methods without infringing the Solomon Amendment, the Government responded by amending the Solomon Amendment to its current version, which requires not only entry but also equal access.
After that determination, the Court concluded that the Solomon Amendment regulates conduct, not speech. In reaching that conclusion, Justice Roberts presented the opinion of the Court by arguing against the Third Circuit’s reasoning. One of the Third Circuit’s opinions is that law schools were engaging in speech by sending emails and distributing flyers when providing recruitment services to military institutions, and these were considered as speech. Justice Roberts, on the other hand, found that writing emails or distributing flyers were not compelled speech but were “plainly incidental” (p. 62) and said that the Third Circuit’s conclusion was “far cry from compelled speech.” (p. 62), because the Solomon Amendment “…does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” (P. 62)
After concluding that the Solomon Amendment regulates conduct, not speech, Justice Roberts discusses the expressive nature of conduct, taking into consideration similar precedents of the Supreme Court, such as O’Brien, Dale, Hurley, and Barnette, where different forms of expressive conduct were involved. However, Justice Roberts distinguished all those precedents, claiming that unlike the cases mentioned above, “… a law school’s decision to allow recruiters on campus is not inherently expressive” (p. 64), because “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.” (p. 64)
In the 303 Creative case, Justice Sotomayor, in her dissenting opinion, analogizes the FAIR case by putting forward the same logic that was used in FAIR, claiming there is no compelled speech at hand because the Colorado Anti-Discrimination Act does not require Ms. Smith or 303 Creative to express the state of Colorado’s preferred messages.
Team 303 Non-creative