Supreme Court of the United States



RUMSFELD et al. v. FAIR et al.




No. 01—001 Argued March 2, 2006–Decided March 10, 2006




PRIOR HISTORY: Appeal from Third Circuit Court of Appeals. Filed February 26, 2006.


COUNSEL: For Petitioners: Garrett W. Stiles, Totum Bovinus Starcus Legal Practitioners, LLC., Walla Walla, WA.

For Respondents: Thomas Powers, Stoel Rives LLP, Portland, OR.

JUDGES: Authored by Christopher M.A. Chamness and Meagan Reed, JJ.; James Hanson, C.J. joins.


Held: The Solomon Amendment does not violate the compelled speech or unconstitutional condition doctrines, nor does it fail to meet the strict scrutiny requirement of narrow construction.





In 1994, the United States Congress passed the Solomon Amendment (10 U.S.C. § 983), to deny federal funding to institutions of higher education that prohibit military recruitment on campus. The statute was revised in 2003 to require schools to give military recruiters equal treatment to any other recruiting employer hosted on their campuses. Respondents brought this suit to the United States District Court claiming that making educational institutions’ federal funding contingent on their giving military recruiters equal access to students violated their First Amendment rights. They assert that this law forces schools to violate their own anti-discrimination policies and thus amounts to an unconstitutional case of compelled speech. Respondents also claim that the restriction of government funding for this reason is an instance of unconstitutional conditionality. The Third Circuit Court of Appeals ruled in a 2-1 decision on November 29, 2004 that the statute does not meet the requirements of strict scrutiny under the compelled speech and unconstitutional conditions doctrines. Plaintiffs appealed to this Court.


The First Amendment was designed first and foremost with the purpose of protecting the right of individuals and private organizations to express dissatisfaction with the government without threat of punishment or censorship. According to precedent established by Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986), Wooley v. Maynard, 430 U.S. 705 (1977), and Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), comprised in this intention is the prohibition not only of the restriction of speech, but also of the compulsion of speech. In citing these cases, respondents seek to show a parallel between recognized forms of compelled speech and the conditions for receipt of federal funding required by the Solomon Amendment (RESPONDENT’S BRIEF, p.5-6). However, those decisions undermine, rather than support, the court of appeals' holding. The Solomon Amendment does not compel any speech such as that in Wooley v. Maynard where a state law required motorist to display the state motto. Rather, the actions required of the institutions of higher education by the Solomon Amendment are forms of conduct. The schools are required to admit military recruiters to disseminate their own message, which is not the same as forcing the schools to issue that message directly.

Respondents argue that Boy Scouts of America v. Dale, 530 U.S. 640 (2000) shows that the government cannot compel autonomous groups to violate their own policies (RESPONDENT’S BRIEF, p. 4). However, Boy Scout troop leaders act as direct representatives of the organization’s values and policies. They are expected to serve as role models for the organization’s members. In contrast, military recruiters are in no way direct voices of the educational institution’s values and policies. In response to the claim that the Solomon Amendment creates a forced association between law schools and military policy, this Court finds that no forced association has been made. Whereas the Boy Scout’s freedom of expressive association was violated because of a law requiring the inclusion of a homosexual scoutmaster, this law in no way forces law schools to “accept members it does not desire.” Id. Recruiters of employment are by their very nature outsiders from an institution where they visit; their purpose is to represent their employers.

Institutions of higher education are free to express their own views about military recruiters, the military in general, and the military’s Don’t Ask/Don’t Tell policy. There is no need, as respondents assert, for law schools to “relinquish their message of antidiscrimination” nor to “alter [their] speech” (RESPONDENT’S BRIEF, p. 4-5).The Department of Defense (DOD) has never threatened to withdraw funding based on public criticism of military policies made by educational institutions, faculty and students. Rather, the DOD encourages the increased expression of conflicting views in order that they might be freely assessed in the “marketplace of ideas” (Abrams et al. v. United States, 250 U.S. 616 (1919); PETITIONER’S BRIEF, p. 3). Nor is an institution’s speech in opposition to military policies merely “ameliorative” (RESPONDENT’S BRIEF. p. 5). Whereas military recruiters visit the campus on an infrequent basis, the school is free to assert its message independently and consistently throughout the year, not only in response to the recruiters’ presence.

Even when recruiters are present, the college’s speech is not a disclaimer that it is forced to express in order to counteract pro-military, pro-discrimination compelled speech as asserted by Respondents. Instead, the protests or other organized opposition to the military’s non-school-affiliated viewpoint are a freely conducted and autonomous response, the absence of which would not lead students to believe that the school supported the military’s policies. That law school students may confuse the presence of military recruiters with an acceptance of their policy by the law school is unfounded, especially when law schools are able to actively protest military policy. In the recent past, this Court has concluded that students in secondary school “are mature enough” to distinguish between school-sponsored speech and “permitted” speech allowed via an equal access policy (Westside Community Board of Education v. Mergens, 496 U.S. 226, 250 (1990)).  Clearly, law students and other students of higher learning institutions can also discern the difference between allowing military recruiters access to the campus and endorsing their message (PETITIONER’S BRIEF, p. 7).

Finally, educational institutions that prefer not to provide equal access to military recruiters may decline federal funding. Thus, the compelling state interest, in this case the promotion of military recruiting, does not involve the restraining of a viewpoint, as respondents claim (RESPONDENT’S BRIEF, p. 7). As private institutions, law schools are not required to accept money from the government. Their choice to do so subjects them to certain conditions and requirements, including allowing military recruiters equal campus access, but this does not constitute an unconstitutional compulsion to endorse any government messages.


The government reserves the right to place conditions and stipulations on the receipt of certain benefits. Private individuals must demonstrate that they meet certain qualifications in order to claim access to federal funding for education, for instance. As long as it does not violate an institution’s constitutional rights, the government may place conditions on funding (Grove City College v. Bell, 465 U.S. 555 (1984)).

Respondents point to the dependence of large universities on government funding to maintain their socially valuable research facilities as an indication that they are not truly free to choose to decline funding (RESPONDENT’S BRIEF, p. 8). Even if this were the case, the institutions have other means of expressing their opposition to the military’s policies in addition to forfeiting federal funds (supra, p. 3). The acknowledgement that it is highly expedient for some or all institutions of higher learning to make use of federal funds does not alter the voluntary nature of such a choice. A citizen could argue that the suspension of their driver’s license violates their constitutional right to vote by citing their need to drive to the voting booth, but that argument would not be upheld by this Court, given the compelling state interest in keeping unsafe drivers off the roads. Federal funding is a similar privilege that may likewise be withheld in order to serve a compelling state interest.



While it is clear that the Solomon Amendment does not compel speech, it is important to look to whether expressive conduct was regulated. This Court does find that expressive conduct has indeed been regulated, and as such it is necessary to apply the O’Brien test to determine intermediate scrutiny.

            The first factor of the O’Brien test is whether the government regulation is within the constitutional power of the government to enact. The Constitution gives Congress specific duties to “provide for the common Defense,” to “raise and support Armies,” and “provide and maintain a Navy” U.S. Const. Art. I, Sec. 8, Cls. 1, 12, and 13 (1789). As Congress is mandated to provide legislation to meet these stated ends, it is quite clear that they have been given constitutional power and interest in this case. The fact that the enforcement of this law includes the removal of federal funds does not put an unconstitutional stipulation upon law schools as the Respondents suggest. The U.S. Congress has had a long standing tradition, upheld by this Court, of affecting change with the threat of pulling government funding. In Grove City College v. Bell, 465 U.S. 555 (1984), we rejected one private college’s claim that conditioning federal funding to the institution upon compliance with Title IX of the Education Amendments of 1972 violated the First Amendment. We held that “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept.” Id.

The second factor is whether the regulation furthers an important or substantial government interest. The common defense of our country is not only a substantial interest, but it may be argued that it is a paramount interest. The Framers of the Constitution made this position clear. Federalist #23 notes that “[t]he authorities essential to the care of the common defense are these—to raise armies—to build and equip fleets—to prescribe rules for the government of both—to direct their operations—to provide for their support. These powers ought to exist without limitation […]” (emphasis added). The Court recognizes that military recruitment is a vital responsibility of the state and is necessary to satisfy the constitutional mandates regarding the defense of our country. Preserving the privilege of an all-voluntary, non-conscripted military is only possible when the armed services have the opportunity to attract educated and talented men and women to become leaders in their forces (PETITIONER’S BRIEF, p. 3). The “narrowly tailored” recruitment options suggested by the Third Circuit Court of Appeals, such as television and radio commercials or loan reimbursement processes extrinsic to the schools are not substitutes for face-to-face student-recruiter interaction (FAIR v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004)). It is clear that the Solomon Amendment also meets O’Brien’s third factor, that the government interest is unrelated to free expression. The very purpose of this law is to allow recruiting of law school students, not to limit expression. No provision exists within this law that prohibits law schools from protesting military policy, nor is there a need to stifle expression through the recruitment of personnel to the armed forces.

The final factor of O’Brien that the restriction be no greater than is essential to the furtherance of the government interest is also met by the Solomon Amendment. The text of the law clearly limits itself to allowing military recruiters access to campus. It does not require law schools to speak approvingly of military policy or limit other actions. Thus, we do not consider the requirement of accepting military recruiters in any way excessive.


It is undisputed by either petitioners or respondents that revisions to the Solomon Amendment were created in response to attempts by law schools, and the American Association of Law Schools (AALS) in particular, to prevent access of military recruiters on campus. Revisions to the Solomon Amendment broadened removal of federal funds from law schools singularly to several college departments have been made in response of the refusal of law schools to cooperate with the Amendment as originally worded. As such, the cessation of federal funds to a university as a whole rather than just a law school does not represent an overly broad punishment, but rather a necessary response to the historic non-compliance of law schools. It has been noted by Petitioners that separate registration rosters between a university law school and other educational programs would be all that is needed to prevent penalization of an entire university. This fact leads this Court to believe that, even if the removal of all funding from a university were unconstitutional (which it is not), each university on their own volition may decide whether they want to face such a broad punishment or not.

            The text of the Solomon Amendment specifically revokes federal funding from the Department of Defense and other Federal agencies if an academic institution “either prohibits, or in effect prevents… access to students… for the purposes of military recruiting in a manner that is at least equal in quality and scope… that is provided to any other employer…”. 10 USCS §983(b). Law schools have barred the military from entrance into their institutions while simultaneously denouncing their discriminative policies. If compelled to adhere to the Solomon Amendment, law schools will simply be required to provide the same services to the military as it does to any other employer, including “the dissemination of literature, employment announcements, placement at a job fair, the promotion private appointments with students and all other functions the school provides employers” (RESPONDENT’S Brief , p. 4). This Court finds the prohibition against the barring of military recruiters to be little different from the restrictions on the burning of a draft card which this Court permitted in United States v. O’Brien, 391 U.S. 367 (1968).


The Third Circuit Court of Appeals ruling is overturned because the Solomon Amendment does not violate respondents’ First Amendment Rights. First, no speech is compelled of the law schools, only conduct; second, the schools are still given the freedom to express their own viewpoint; third, the schools may deny recruiters and accept the loss of federal funding if they so choose; fourth, the schools retain freedom of association; and finally, the law is sufficiently narrowly constructed to pass the requirements of the O’Brien test. Therefore, the Solomon Amendment is constitutional. Furthermore, the precedents cited by respondents do not apply to this situation, and implying that they do trivializes the true purpose and function of the First Amendment, which is to allow private parties to express their own opinions about the government, not to actively obstruct activities that are in the vital interest of that government and its citizens.

390 F.3d 219 (3d Cir. 2004), reversed.

Reed and Chamness, JJ. delivered the opinion of the Court. Hanson, C.J., joined.