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FAIR v. Rumsfeld; Trial Magazine

Law schools may refuse military recruiters and keep federal funds

Posted with permission of TRIAL (February 2005)
Copyright the Association of Trial Lawyers of America

Law schools cannot be denied federal funds for refusing to accommodate military recruiters, the Third Circuit has ruled. The court concluded, 2-1, that the Solomon Amendment—which Congress enacted in 1995 in response to some universities’ refusal to provide access and assistance to recruiters—“violates the First Amendment by impeding the law schools’ rights of expressive association and by compelling them to assist in the expressive act of recruiting.” (Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004).)

Most law schools have a nondiscrimination policy that extends to employers recruiting on campus. Because of the U.S. military’s policy of excluding gays and lesbians from the services, many law school faculty and administrators believe that accommodating military recruiters violates the schools’ nondiscrimination principles.

In 2003, the Forum for Academic and Institutional Rights (FAIR), an association of law schools and faculty, sued the Department of Defense (DOD) and other federal agencies that denied funds under the amendment, seeking a preliminary injunction enjoining its enforcement. The district court denied the motion, but the Third Circuit reversed and remanded.

The Solomon Amendment requires the DOD to deny federal funding to schools that do not give military representatives access and assistance for recruiting purposes. Subsequent revisions to the law expanded it to include funds from other federal agencies and required that funds be withheld from a law school’s parent university. After the September 2001 terrorist attacks, the DOD began requiring access and assistance equal to what nonmilitary recruiters received.

The demand that law schools affirmatively assist recruiters—not just allow access to their campuses—triggered the lawsuit, said E. Joshua Rosenkranz, a New York City attorney who represents FAIR. “The vast majority of law schools in the country were not kicking military recruiters off campus, but were simply finding ways to allow them to recruit on campus without abetting their recruiting,” he said.

“Law schools were articulating a simple message: ‘We do not discriminate. We do not abet others who discriminate. No exceptions,’” Rosenkranz said. “The court understood that forcing law schools to assist military recruiters in disseminating their recruiting messages—or even just to provide a forum for those messages—strikes at the heart of the First Amendment.”

In a dissent, Judge Ruggero Aldisert said that “the impact of the Solomon Amendment on the law schools’ interests in expressive association is far too remote to violate the First Amendment.”

However, the court concluded that the act of recruiting is expression and that the amendment “requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom,” Judge Thomas Ambro wrote for the majority.

The government did not show that it needs to recruit on campuses, the court said. “The government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal,” Ambro wrote.

Sylvia Law, a professor at New York University School of Law and one of the appellants in the case, agreed, noting that the military’s recruiting strategy at law schools is not very effective. “The reality is, when they come to law schools, they are met with protesters, and there’s lots of security.”

The court noted that the amendment may actually harm recruiting efforts by contributing to ill will toward the military, and that the military has other options. “The availability of alternative, less speech-restrictive means of effective recruitment is sufficient to render the Solomon Amendment unconstitutional under strict-scrutiny analysis,” Ambro wrote.

The court cited Boy Scouts of America v. Dale, in which the Supreme Court held that the Scouts could not be forced to accept openly gay James Dale as a scoutmaster. (530 U.S. 640 (2000).) The Boy Scouts argued that Dale’s presence would impair its right to free expression. “Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath,’ the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness,” Ambro wrote.

However, the Third Circuit’s reliance on Dale may leave antidiscrimination laws open to challenge on First Amendment grounds, said Marc Poirier, a law professor at Seton Hall University who was chair of the Society of American Law Teachers Solomon Amendment Committee when the lawsuit was filed.

Because the Third Circuit read Dale more broadly than other courts have, “progressive activists and scholars will have to work harder to limit Dale in the wake of FAIR v. Rumsfeld,” he said. “Conversely, conservative and libertarian scholars may welcome FAIR v. Rumsfeld as a step in what they consider the right direction—more freedom for private groups to decide who to include and exclude.”

The decision provided important legal support for nondiscrimination on the basis of sexual orientation as well as for “the autonomy of an academic institution to determine and enforce its own policies on nondiscrimination,” said Alan Minuskin, chair of a military recruiting task force at Boston College Law School. “If we choose to compromise one thing we’ve said is important, what does that mean about our real commitment to the rest of the ideals we say we stand behind?”

Poirier noted that it is politically difficult to challenge military positions in a time of war. “To be sure, courts traditionally defer to military judgment about what is necessary for military operation,” he said. “One important aspect of the Third Circuit majority opinion is its lack of deference to the military.”

“We have men and women in the U.S. military who are risking their lives to advance and protect freedom here and around the world, who are gay and lesbian and who must suppress their identities in order to obtain and keep their positions,” Minuskin said. FAIR v. Rumsfeld “represents another step in what has been and will continue to be reformation of local and federal law to recognize that discrimination on the basis of sexual orientation in our society is not tolerable. History will judge this kind of discrimination harshly.”