Fair V Rumsfeld

Rumsfeld v. Forum for Academic and Institutional Rights

Introduction

Joshua Rosenkrantz, the lawyer and spokesperson for The Forum for Academic and Institutional Rights (FAIR), has publicly called the United States government "bigots" for maintaining the United States Military's "don't ask, don't tell" policy. Based on Rosenkrantz's point of view, we have predetermined victory for the "fair" players in the case of FAIR v. Bigots ; however, a more careful analysis past the slogans reveals a not only highly controversial and sophisticated, but also potentially paramount piece of ongoing litigation over the Solomon Amendment's and its subsequent constitutionality. The Solomon Amendment is a federal law that penalizes law schools which fail to permit military recruiters on campus by prohibiting the schools from receiving federal funds. As a result, many universities strenuously object to the Solomon Amendment because they are faced with the dilemma of allowing military recruiters on campus, an action which alienates their policies regarding sexual orientation discrimination, or losing federal funds. At the crux of this issue is the tension between the government's Constitutional power to raise and support an army and FAIR's First Amendment rights to freedom of speech and association. The government bases its argument on the Solomon Amendment's regulation of conduct, not speech, and the fact that any detriment to FAIR universities is trumped by the compelling governmental interest of recruiting top lawyers for the military, especially in this time of war. Conversely, FAIR asserts that the law is an unconstitutional condition because it violates their First Amendment rights by impeding the universities' rights of expressive association through compelling them to allow recruiters on campus whom do not adhere to their discrimination standards. By taking the case in May 2005, the Supreme Court will have to decide if the Third Circuit Court of Appeals erred in holding that the Solomon Amendment likely violates the First Amendment to the Constitution and in granting a preliminary injunction against the Solomon Amendment's enforcement.

Facts

The American Association of Law Schools has long maintained formal policies of nondiscrimination that withhold career placement services from employers who exclude applicants based on race, gender, religion, and sexual orientation. Perhaps the best example of this policy is the fact that virtually every law school in the nation requires recruiting employers to sign a statement certifying its practices do not discriminate on a plethora of ways, including sexual discrimination. Due to the "don't ask, don't tell" policy which excludes homosexuals, military recruiters are unable to sign these nondiscrimination statements. Some law schools began refusing military recruiters' access to their campuses, and subsequently, angered many members of Congress in the process. In 1994, Rep. Gerald Solomon of New York sponsored an amendment that proposed denying federal funding from any educational institution with a policy of preventing the military from obtaining entry to campuses for recruiting purposes. Despite intense bi-partisan debate, the Solomon Amendment was quickly ratified and enacted into law within only a few months. As a direct result, law schools began to allow military recruiters on campus to talk to students while not allowing them to use university career services, an action which avoided the Solomon penalty while reaffirming the opposition to the military's "don't ask, don't tell" policy. In the wake of September 11th 2001, however, the Department of Defense sent letters to the law schools informing them that they would lose federal funding if they failed to provide the military with same access as other employers. In response, FAIR sued the government in 2003 arguing that the amendment violates the law schools' First Amendment rights by compelling them to disseminate a message with which they disagree and moved for a preliminary injunction against its enforcement. In November 2003, the District Court denied FAIR's motion saying it was unlikely to succeed on First Amendment grounds and FAIR appealed; however, before the case was brought before the Third Circuit Court of Appeals, Congress amended the Solomon Amendment to include the Department of Defense's new policy demanding equal access.

Relevant Law

The law in this case deals with an action for injunctive relief based on constitutional claims. To obtain a preliminary injunction FAIR must establish (1) a reasonable likelihood of success on the merits, (2) irreparable harm absent the injunction, (3) that the harm to FAIR absent the injunction outweighs the harm to the Government of granting it, and (4) that the injunction serves the public interest.

Issue and Holding

The issue in this case includes whether or not all of the criteria for a preliminary injunction are present. In hearing the case, the Third Circuit Court of Appeals considered the unconstitutional conditions doctrine and first amendment rights to expressive association and compelled speech in order to determine the likelihood of success. Upon establishing a likelihood of success for FAIR as well as demonstrating the three other criteria, the court reversed and remanded the District Court by holding that a preliminary injunction against the enforcement of the Solomon Amendment be granted.

Explanation of the Decision by the Third Circuit Court of Appeals

The greater part of the Court of Appeals' decision analyzed the likelihood of FAIR's success based on the merits of the case. The court of appeals began by evaluating FAIR's claim that the Solomon Amendment is an unconstitutional condition. Under the unconstitutional conditions doctrine, the government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests. Therefore, the court concluded that if the law schools' compliance with the Solomon Amendment compromises their rights, the law is an unconstitutional condition. In order to assess the question, the court next investigated the First Amendment rights through two avenues of analysis. The first contemplates whether the law schools are expressive associations whose First Amendment rights to disseminate their chosen message in impaired by the inclusion of military recruiters on their campuses, while the second looks at whether the law schools are protected by free speech rights from being compelled to assist military recruiters