Freedom of Association: Conditioning Federal Funds on Military Recruiters’ Access to Campus

The Solomon Amendment conditions certain federal funds on universities allowing access to military recruiters on equal footing with other employers. The American Association of Law Schools voted to include “sexual orientation” as a “protected category” in 1990. As a result, nearly every campus has a policy that excludes organizations that discriminate against homosexuals, including the military due to its “Don’t Ask, Don’t Tell” policy. During the middle of war, the Forum for Academic and Institutional Rights (“FAIR”) brought this action under the First Amendment to enjoin military recruitment on their campuses. FAIR argued that the access requirement amounted to compelled speech and burdened their associational rights. The district court denied their preliminary injunction.

The Third Circuit invoked strict scrutiny under the compelled speech theory, holding that because the government had alternative means that were less burdensome to the right of the Appellants, that the requirement was not narrowly tailored.

Issue Areas:

Individual Liberty

Case:

Question(s) Presented:

Did the Court of Appeals err in holding that the Solomon Amendment’s equal access condition on federal funding likely violates the First Amendment and in directing a preliminary injunction to be issued against its enforcement?

ALF’s Amicus Brief:

ALF argues that national security is the most compelling national interest, and that recruiting access to university students is essential to fulfilling the personnel needs of a sophisticated volunteer force. This Court, unlike the Third Circuit, has recognized that it lacks expertise in military matters. “It is difficult to conceive of an area of government activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). It is perhaps unsurprising then, that when a court such as the Third Circuit weighs in on a political issue, siding with campus administrators who wish to interfere with the military’s mission and exclude from their campuses any employers that do not promote gay rights, that it does so on the absurd premise that a radio advertisement is an adequate replacement for in person relationship building. Military recruiters need to be able to tailor a recruitment pitch to the aspirations of a potential recruit in a fiercely competitive jobs market, during wartime most of all.

Under any level of scrutiny, any objective court should find that the government interest in reaching the most talented American students to fill the growing needs of an increasingly technologically sophisticated global military mission outweighs the associational rights of campus administrators whose views represent only part of the student body that the military needs access to. Recruiting in person is essential to meeting personnel needs of a volunteer force.

It is unlikely that all students on campuses receiving federal funds share the view of campus administrators that association with the military should be conditioned on the military’s policies towards homosexuals. It is ironic then that these administrators claim to have their associational rights infringed as they try to prevent their students from associating with the military, despite how critical the mission of the military is to the very existence of these academic institutions. If campus administrators feel so strongly about their political opinions, that they cannot tolerate different viewpoints on their campuses, then these administrators should become political activists rather than forcing their students to associate only with organizations that conform to their moral preferences. Or the administrators can stop taking federal funds if contributing to national security during wartime is too burdensome on their supposed right to deny their students the right to associate with the military or any other employer that holds traditional views on sexual morality.

However, the First Amendment is not even implicated by the Solomon Amendment. It interferes with no expressive association. It compels no speech. The Third Circuit bases its analysis on Boy Scouts of America v. Dale, 530 U.S. 640, which involved a state law compelling the Boy Scouts to accept gay men as scout leaders. This case is entirely inapposite. Universities are not being required to hire anyone that conflicts with the moral beliefs of their organization like in Dale.  Even if the very presence of military recruiters on campus were a speech act, requiring schools to facilitate government speech is permissible under the First Amendment. Johanns v. Livestock Marketing Board, 125 S.Ct. 2055 (2005).

The Foundation asks this Court to overturn the Third Circuit’s fallacious ruling.

Status:

On March 6, 2006, the Supreme Court issued a favorable decision, holding that even if Congress had issued a direct requirement of access for military recruiters on university campuses, the First Amendment would not have been violated because the requirement in question compelled conduct, not speech.