547 U.S. 47, 126 S. Ct. 1297, 164 L. Ed. 2D 156 (2006)
The Forum for Academic and Institutional Rights, Inc. (FAIR) is an association of law schools and law faculties whose members have adopted policies expressing opposition to discrimination based on sexual orientation.1 These members objected to the military's policy regarding homosexuals in the military and sought to restrict military recruiting on their campuses.2 In response to such restrictions by law schools, Congress enacted the Solomon Amendment, which denies specified federal funds to institutions of higher education that do not provide military recruiters access equal to that provided other recruiters.3
In 2003, FAIR filed suit against enforcement of the Solomon Amendment and sought a preliminary injunction.4 At that time, the statute prevented the Department of Defense from providing funds to institutions that prohibited or prevented military recruiters from gaining entry to campuses.5 After the September 11, 2001 attacks, the Department of Defense had adopted an informal policy requiring equal access in quality and scope to students.6 Some law schools had previously arranged for military recruiters to interview on the undergraduate campus to comply while maintaining their policies.7
The District Court for the District of New Jersey denied the preliminary injunction.8 The court concluded that FAIR had not established a likelihood of success on the merits of its claims.9 Congress subsequently amended the Solomon Amendment to codify the equal access requirement, specifying that military recruiters must receive access at least equal in quality and scope to that provided any other employer.10
FAIR appealed to the Court of Appeals for the Third Circuit.11 A divided panel of the Third Circuit reversed the District Court and remanded with instructions to enter a preliminary injunction against enforcement of the Solomon Amendment.12 The Supreme Court granted certiorari to review the Third Circuit's decision.13
Whether institutions of higher education can comply with the Solomon Amendment by applying a general nondiscrimination policy to military recruiters?14
The Solomon Amendment requires the Secretary of Defense to ensure military recruiters receive access to campuses and students at least equal in quality and scope to that provided any other employer. The statute focuses on the result achieved rather than the content of the school's policy.15
No. The established facts show that FAIR members adopted nondiscrimination policies opposing sexual orientation discrimination and sought to restrict military recruiters by arranging interviews on undergraduate campuses before the equal access policy took effect.16 The rule demands comparison of actual access provided, and under these facts applying the same policy to all recruiters fails when it yields lesser access for the military.17 The District Court initially questioned the equal access interpretation, prompting Congress to codify it, confirming that result-based compliance is mandatory.18
Institutions of higher education cannot comply with the Solomon Amendment merely by applying a general nondiscrimination policy to military recruiters.19
Whether the Solomon Amendment compels law schools to speak the government's message?20
The First Amendment prohibits government compulsion of speech as in Barnette and Wooley. Incidental statements of fact required only to the extent a speaker chooses to provide similar speech for others do not constitute unconstitutional compulsion when they are ancillary to conduct regulation.21
No. The established facts reveal that the Solomon Amendment regulates conduct by requiring equal access for military recruiters, with any e-mails or notices being incidental and provided only if the school already assists other recruiters.22 Applying the rule to these facts, the assistance involves no government-dictated pledge or motto and remains far removed from forced endorsement, as the schools retain full freedom to express their own views on military policy while keeping federal funds.23
The Solomon Amendment does not compel law schools to speak the government's message.24
Whether the Solomon Amendment requires law schools to host or accommodate the military's speech?25
The First Amendment limits government compulsion to host or accommodate another speaker's message when that forced inclusion alters the host's own expressive content, as in Hurley, Tornillo, and Pacific Gas. Mere facilitation of interviews and receptions that lack inherent expressiveness and do not interfere with the host's message creates no violation.26
No. The established facts indicate that law schools facilitate recruiting to help students obtain jobs and that accommodating military recruiters does not change any message the schools wish to convey, unlike a parade or newspaper editorial.27 Applying the rule to these facts, the schools remain free to post signs, organize protests, or disassociate from military policies, and students can distinguish permitted access from endorsement, so no alteration of the schools' expression occurs.28
The Solomon Amendment does not require law schools to host or accommodate the military's speech.29
Whether the conduct regulated by the Solomon Amendment is expressive and protected under the First Amendment?30
First Amendment protection for expressive conduct under O'Brien and Johnson extends only to inherently expressive activity where the expression is overwhelmingly apparent without explanatory speech. Conduct becomes expressive only through accompanying words does not qualify.31
No. The established facts demonstrate that law schools expressed disagreement with military policy by treating recruiters differently, such as holding interviews off campus, but an observer could not discern the reason without additional speech.32 Applying the rule to these facts, the need for explanatory speech proves the conduct itself is not inherently expressive, and allowing such transformation by mere announcement would undermine O'Brien analysis entirely.33
The conduct regulated by the Solomon Amendment is not expressive and protected under the First Amendment.34
Whether the Solomon Amendment violates law schools' freedom of expressive association?35
The First Amendment protects expressive association by preventing forced inclusion of unwanted members that significantly affects a group's ability to express its message, as in Dale. Requiring interaction with outside recruiters who are not members and do not alter group composition or make membership less desirable creates no violation.36
No. The established facts show that military recruiters are temporary outsiders seeking to hire students rather than join the law school's expressive association, and students and faculty remain free to associate in expressing disapproval of military policies.37 Applying the rule to these facts, the statute imposes no membership requirement and does not affect the group's composition or attractiveness, distinguishing it from the public accommodations law in Dale.38
The Solomon Amendment does not violate law schools' freedom of expressive association.39