First Amendment - Unconstitutional Conditions - Third Circuit Holds the Solomon Amendment Unconstitutional

Harvard Law Review, June 2005 | Go to article overview

First Amendment - Unconstitutional Conditions - Third Circuit Holds the Solomon Amendment Unconstitutional


FIRST AMENDMENT--UNCONSTITUTIONAL CONDITIONS--THIRD CIRCUIT HOLDS THE SOLOMON AMENDMENT UNCONSTITUTIONAL. --Forum for Academic & Institutional Rights (FAIR) v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), cert. granted, 73 U.S.L.W. 3648 (U.S. May 2, 2005) (No. 04-1152).

"[T]ell[] recipients of Federal money at colleges and universities that if you do not like the Armed Forces ... that is fine.... But do not expect Federal dollars to support your interference with our military recruiters." (1) In offering such support for his amendment to the 1995 defense appropriations bill, Representative Gerald Solomon raised one of the "trickiest issues" in First Amendment law: the intersection of expressive associations and conditions on government benefits. (2) Recently, in Forum for Academic & Institutional Rights (FAIR) v. Rumsfeld, (3) the Third Circuit skirted that tricky issue when it held the Solomon Amendment (4) unconstitutional. (5) The FAIR court's analysis of the expressive association standard established in Boy Scouts of America v. Dale (6) failed to recognize the Dale Court's limiting language. Moreover, the court's brief consideration of the unconstitutional conditions doctrine assumed that the Solomon Amendment constitutes a penalty without performing the necessary doctrinal analysis.

The Solomon Amendment denies federal funding to institutions of higher education that prohibit military representatives from entering campuses "for the purpose of military recruiting in a manner that is at least equal in quality and scope to the access ... that is provided to any other employer." (7) FAIR sued in September 2003, seeking to preliminarily enjoin enforcement of the Solomon Amendment as an unconstitutional condition on federal funds. (8) They claimed the Amendment impaired the law schools' expressive association rights because it "significantly affect[ed] [the] law schools' ability to express their viewpoint ... that discrimination on the basis of sexual orientation is wrong," and that it also "violate[d] the law schools' First Amendment rights under the compelled speech doctrine."

The district court refused to grant the requested injunction. Judge Lifland determined that while prior unconstitutional conditions cases failed to provide a controlling framework, (11) the Solomon Amendment did not "transgress constitutional boundaries." (12) The court first addressed the expressive association claim by applying the three-prong test set forth in Dale. (13) The court determined that law schools are expressive associations, (14) but that neither "the forced inclusion on their campuses of an unwanted periodic visitor would significantly affect [their] ability to express their particular message or viewpoint" (15) nor that the law schools were forced to endorse, even by implication, the military's recruiting message. (16) The court indicated that even if the Solomon Amendment did burden law schools' expressive rights, it would have upheld the Amendment under intermediate scrutiny because of the important government interest at stake in raising the armed forces. (17)

A divided panel of the Third Circuit reversed, remanding with an order to grant a preliminary injunction. (18) Writing for the majority, Judge Ambro (19) first affirmed the district court's finding that the exceptions to the unconstitutional conditions doctrine for selective spending programs did not apply because the Solomon Amendment does not create a spending program; instead, "it merely imposes a penalty--the loss of general funds." (20) The court went on to emphasize, however, that the "Government may not propose a penalty to 'produce a result which [it] could not command directly.'" (21) It concluded that "if the law schools' compliance with the Solomon Amendment compromises their First Amendment rights, the statute is an unconstitutional condition." (22)

The court then turned to the First Amendment expressive association claim and applied Dale. …

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