Rumsfeld v. Forum For Academic And Institutional Rights, Inc.

547 U.S. 47 (2006)

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Nature of the Case

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Facts

Under the Solomon Amendment, if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds. P sought a preliminary injunction against enforcement. Some law schools sought to promote their nondiscrimination policies while still complying with the Solomon Amendment by having military recruiters interview on the undergraduate campus. But under the equal access policy, military recruiters had to be permitted to interview at the law schools, if other recruiters did so. Ps claimed the forced inclusion and equal treatment of military recruiters violated the law schools' First Amendment freedoms of speech and association. The District Court held that inclusion 'of an unwanted periodic visitor' did not 'significantly affect the law schools' ability to express their particular message or viewpoint.' It held that recruiting is conduct and not speech, concluding that any expressive aspect of recruiting 'is entirely ancillary to its dominant economic purpose.' P also took the position that giving military recruiters access to other school locations met that burden. D disagreed saying it required the same access as other law school recruiters got at the law school itself. The Solomon Amendment (which was amended) subsequently prevented an institution from receiving certain federal funding if it prohibited 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.' P appealed the recently amended Solomon Amendment. A divided panel of the Court of Appeals for the Third Circuit agreed that the amended statute was unconstitutional. It forced a law school to choose between surrendering First Amendment rights and losing federal funding for its university. The Supreme Court granted certiorari.