The National Pulse

Recruit Suit


University administrators stand to lose millions in government funding depending on how the justices rule. And military recruiters, facing a shrinking applicant pool in a time of war, will be paying attention to how much access they will be allowed.

They are among the myriad of amici curiae offering briefs in the case involving the constitutionality of a federal law that requires universities to treat military recruiters the same as other recruiters or face a loss of federal funding.

The Forum for Academic and Institutional Rights, a consortium of law schools, says the Solomon Amendment forces them to agree with the government’s “don’t ask, don’t tell” policy on gays in the military, a policy they say is discriminatory.

The case, scheduled for argument Dec. 6, will likely find the court addressing a variety of constitutional and First Amendment principles. “This case finds itself at a convergence of three doctrines that foster a lot of controversy–compelled speech, expressive association and unconstitutional conditions,” says New York City based attorney E. Joshua Rosenkranz, who will argue the case for FAIR.

FAIR sued the Defense Department in September 2003, contending that the Solomon Amendment, originally adopted by Congress in 1994, violated the First Amendment. A federal district court rejected the government’s motion to dismiss the suit, but also rejected FAIR’s motion for a preliminary injunction. 291 F. Supp. 2d 269 (D.N.J.).

A divided panel of the 3rd U.S. Circuit Court of Appeals at Philadelphia reversed 2-1 in November 2004, granting FAIR a preliminary injunction. 390 F.3d 219. The panel majority ruled that the law violated FAIR’s expressive association rights and the compelled speech doctrine by forcing FAIR to agree with “don’t ask, don’t tell.”

Some view the case as a separation of powers issue. “The decision has tremendous significance because it should answer the question whether Congress will be able to decide where our money goes,” says Andrew Schlafly, an attorney with the Eagle Forum

Education and Legal Defense Fund, a conservative oriented foundation based in Alton, Ill., which has filed an amicus brief in support of the government. “Or will the courts assume the spending power over the purse?”

Free speech experts, however, believe the case implicates core First Amendment principles.

“This case isn’t just a matter of the spending clause,” says UCLA law professor and free speech expert Eugene Volokh. “It also has to do with the special rules that apply when conditions are attached to government funding in a way that implicates the First Amendment.”

Adds Volokh: “The government has considerable power to attach speech restrictive conditions to its grants, but it does not have unlimited power.”

Conditional Benefits

Among the issues the court will likely consider is the unconstitutional conditions doctrine, under which the government may not deny a benefit to an individual on a basis that infringes on that person’s constitutionally protected free speech rights–even if the person has no entitlement to those benefits.

“This unconstitutional conditions case is premised on the notion that the withholding of university grant monies as a result of law schools violating the Solomon Amendment is the same as fining the University for violating the Solomon Amendment,” says Vanderbilt University Law School professor Thomas McCoy, who teaches courses on the First Amendment.

“The law schools are claiming that this is not just an interference with their freedom not to host military recruiters–an ordinary life, liberty or property issue,” McCoy adds. “Instead, the law schools have chosen to express their views on military policy with respect to homosexuals by excluding these military recruiters. This converts it into a speech case.”

Even though they recognize the law schools’ First Amendment arguments, Volokh and McCoy agree that the government’s arguments are strong. Volokh predicts that the government will win by a vote of at least 6 3.

This is not a case where the government is forcing anyone to speak, McCoy says. “This is a regulatory requirement that is designed to enhance and facilitate military recruitment. The government has not set out to interfere with anyone’s speech–it is, in effect, a time, place and manner restriction, rather than a deliberate interference with speech.” Adds McCoy: “You look at the extent of the accidental interference with speech in view of the alternative ways there are for the speakers to express their message. Here, the law schools have ample alternative means to express their messages.”

Rosenkranz disagrees, saying the government has compelled the law schools’ speech and violated their rights to expressive association. “When you think about this case, you must bear in mind that there are two speakers–the government and the law schools,” he says. “When you focus on this as a case of government speech, the government is requiring law schools to post its handbills, disseminate its message and make appointments for government speakers. This is classic compelled speech.

“Law schools are also communicating something when they adopt anti-discrimination policies,” Rosenkranz continues. “They are communicating a message to their own students–we do not discriminate, we do not abet others who discriminate.”

One question is whether the law schools’ First Amendment arguments will be weakened by the argument that there are alternative ways that the schools can protest the military’s policy on gays. “In view of the number of alternatives for the law schools to express themselves, the government’s nonspeech regulatory interest in effective military recruiting is high and this case is a loser for the law schools,” McCoy says.

“The ability to protest a message you are forced to carry never undoes the harm of the compelled speech,” Rosenkranz argues. “That is never a defense to a compelled speech claim. This case resembles the classic compelled speech cases.

“A state may not force a newspaper to publish an opposing opinion even though the newspaper can always say this is not our opinion. The court ruled in Maynard v. Wooley, 430 U.S. 705 (1977), that [the state of New Hampshire] violated the compelled speech doctrine by forcing a motorist to carry the motto ‘Live Free or Die’ on his license plate even though the motorist could have emblazoned his car with the message, ‘The state motto is a crock.’ ”


David L. Hudson Jr. is a staff attorney with the First Amendment Center at Vanderbilt University in Nashville, Tenn.


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