Forum for Academic & Institutional Rights v. Rumsfeld

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-29-2004
Forum Academic v. Secretary Defense
Precedential or Non-Precedential: Precedential
Docket No. 03-4433P
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4433
FORUM FOR ACADEMIC AND INSTITUTIONAL
RIGHTS, a New Jersey membership corporation;
SOCIETY OF AM ERICAN LAW TEACHERS, INC.,
a New York corporation; COALITION FOR EQUALITY, a
Massachusetts association; RUTGERS GAY AND LESBIAN
CAUCUS, a New Jersey association;
PAM NICKISHER, a New Jersey resident; LESLIE
FISCHER, a Pennsylvania resident; MICHAEL
BLAUSCHILD, a New Jersey resident; ERW IN
CHEMERINSKY, a California resident; SYLVIA LAW , a
New York resident,
Appellants
v.
DONALD H. RUMSFELD, in his capacity as U.S. Secretary
of Defense; ROD PAIGE, in his capacity as U. S. Secretary of
Education; ELAINE CHAO, in her capacity as U.S. Secretary
of Labor; TOMMY THOMPSON, in his capacity as U.S.
Secretary of Health and Human Services; NORMAN Y.
MINETA, in his capacity as U.S. Secretary of Transportation;
TOM RIDGE, in his capacity as U.S. Secretary of Homeland
Security
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 03-cv-04433)
District Judge: Honorable John C. Lifland
Argued June 30, 2004
Before: AMBRO, ALDISERT and STAPLETON,
Circuit Judges
(Opinion filed November 29, 2004 )
E. Joshua Rosenkranz, Esquire (Argued)
Timothy P. Wei, Esquire
Sharon E. Frase, Esquire
Heller, Ehrman, White & McAuliffe LLP
120 West 45th Street, 20th Floor
New York, NY 10036-4041
Warrington S. Parker, III, Esquire
Aaron M. Armstrong, Esquire
Benjamin D. Hauser, Esquire
Heller, Ehrman, White & McAuliffe LLP
333 Bush Street
San Francisco, CA 94104-2878
Attorneys for Appellants
2
Peter D. Keisler
Assistant Attorney General
Christopher J. Christie
United State Attorney
Gregory G. Katsas (Argued)
Deputy Assistant Attorney General
Douglas N. Letter, Esquire
Scott R. McIntosh, Esquire
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W., Room 9550
Washington, DC 20530
George S. Leone, Esquire
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Appellees
Paul M. Smith, Esquire (Argued)
William M . Hohengarten, Esquire
Daniel Mach, Esquire
Jenner & Block, Suite 1200 South
601 13th Street, N.W., 12th Floor
Washington, DC 20005
Philip G. Gallagher, Esquire
Lawrence S. Lustberg, Esquire
Jonathan L. Hafetz, Esquire
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
3
One Pennsylvania Plaza, 37th Floor
New York, NY 10119
Stuart D. Rosen, Esquire
Bingham McCutchen
One State Street
Hartford, CT 06103
Jonathan A. Kenter, Esquire
Bingham McCutchen LLP
399 Park Avenue
New York, NY 10022
Tyler M. Paetkau, Esquire
Melissa J. Goldberg, Esquire
Bingham McCutchen LLP
Three Embarcadero Center
San Francisco, CA 94111
Walter E. Dellinger, III, Esquire (Argued)
Pamela Harris, Esquire
O’Melveny & M yers
1625 Eye Street, N.W.
Washington, DC 20006
Hilary E. Ball, Esquire
Sam Heldman, Esquire
Gardner, Middlebrooks, Gibbons, Kittrell & Olsen
2805 31st Street, N.W.
Washington, DC 20008
4
David M. Rabban, Esquire
University of Texas School of Law
727 East Dean Keeton Street
Austin, TX 78705
Ann D. Springer, Esquire
Donna R. Euben, Esquire
American Association of University Professors
1012 Fourteenth Street, N.W., Suite 500
Washington, DC 20005
John L. Moore, Jr., Esquire
Louis J. Rouleau, Esquire
Piper Rudnick LLP
1200 Nineteenth Street, N.W.
Washington, DC 20036
E. O’Brien Kelley, Esquire
Darren G. Gibson, Esquire
Piper Rudnick LLP
1251 Avenue of the Americas
New York, NY 10020
Attorneys for Amicus-Appellants
Howard J. Bashman, Esquire (Argued)
1250 Virginia Drive
Suite 1000
Fort Washington, PA 19034
5
Steven W . Fitschen, Esquire
The National Legal Foundation
2224 Virginia Beach Boulevard
Suite 204
Virginia Beach, VA 23454
Attorneys for Amicus-Appellees
OPINION OF THE COURT
Ambro, Circuit Judge
The Solomon Amendment, 10 U.S.C. § 983, requires
the United States Department of Defense (“DOD”) to deny
federal funding to institutions of higher education that
prohibit military representatives access to and assistance for
recruiting purposes. Last fall, the Forum for Academic and
Institutional Rights, Inc. (“FAIR”), 1 an association of law
1
Joining FAIR in its preliminary injunction motion and in this
appeal are: the Society for Law Teachers, Inc.; the Coalition for
Equality; Rutgers Gay and Lesbian Caucus; law professors
Erwin Chemerinsky and Sylvia Law; and law students Pam
Nickisher, Leslie Fischer, Ph.D., and Michael Blauschild. For
convenience, we refer to all plaintiff-appellants collectively as
“FAIR.”
6
schools and law faculty, asked the United States District
Court for the District of New Jersey to enjoin enforcement of
the Solomon Amendment. The District Court denied FAIR’s
motion. Forum for Academic & Institutional Rights, Inc. v.
Rumsfeld, 291 F. Supp. 2d 269 (D.N.J. 2003) (“FAIR”). On
appeal, we hold that FAIR has demonstrated a likelihood of
success on the merits of its First Amendment claims and that
it is entitled to preliminary injunctive relief. Accordingly, we
reverse.
I. Background Facts 2 and Procedural Posture
A. Law Schools’ Nondiscrimination Policies
Law schools have long maintained formal policies of
nondiscrimination that withhold career placement services
from employers who exclude employees and applicants based
on such factors as race, gender, and religion. In the 1970s law
schools began expanding these policies to prohibit
discrimination based on sexual orientation as well. In
response to this trend the American Association of Law
Schools (“AALS”) voted unanimously in 1990 to include
sexual orientation as a protected category. As a result,
2
The facts on appeal are not in dispute. As the District Court
noted, the Government did not challenge or supplement the
factual assertions presented by FAIR in its motion for injunctive
relief. FAIR, 291 F. Supp. 2d at 277.
7
virtually every law school now has a comprehensive policy
like the following:
[The] School of Law is committed to a policy of
equal opportunity for all students and graduates.
The Career Services facilities of this school
shall not be available to those employers who
discriminate on the grounds of race, color,
religion, national origin, sex, handicap or
disability, age, or sexual orientation . . . .
Before using any of the Career Services
interviewing facilities of this school, an
employer shall be required to submit a signed
statement certifying that its practices conform to
this policy.
B. Congress Passes the Solomon Amendment
The United States military excludes servicemembers
based on evidence of homosexual conduct and/or orientation.
See 10 U.S.C. § 654.3 Citing their nondiscrimination policies,
3
While the current statutory version of the military’s
exclusionary policy has existed since 1993, National Defense
Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, §
571(a)(1), 107 Stat. 1547, 1670 (Nov. 30, 1993), the military has
had formal regulatory policies excluding gays and lesbians since
World War I and a practice of such exclusion since the
8
some law schools began in the 1980s refusing to provide
access and assistance to military recruiters. This caught the
attention of members of Congress. In 1994, Representative
Gerald Solomon of New York sponsored an amendment to
the annual defense appropriation bill that proposed to
withhold DOD funding from any educational institution with
a policy of denying or effectively preventing the military from
obtaining entry to campuses (or access to students on
campuses) for recruiting purposes. National Defense
Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337
Revolutionary War. See, e.g., Articles of War of 1916, Pub. L.
No. 242, art. 93, 39 Stat. 619, 664 (assault with intent to commit
sodomy punishable by court martial); see generally Randy
Shilts, Conduct Unbecoming: Gays & Lesbians in the U.S.
Military 11–17 (1994).
Under the current statute, a servicemember is separated
from the military if it is found that he or she “engaged in . . . a
homosexual act” or “stated that he or she is a homosexual” or
“married or attempted to marry a person known to be of the
same biological sex.” 10 U.S.C. § 654(b). It defines
“homosexual” and “homosexual act” to include evidence
demonstrating “a propensity or intent to engage in homosexual
acts.” Id. It also allows servicemembers to rebut findings of
proscribed conduct with evidence of the lack of a propensity to
engage in homosexual conduct, i.e., evidence of a heterosexual
orientation. Id. Law schools interpret the ban as conflicting
with their policies against discrimination on the basis of sexual
orientation.
9
§ 558, 108 Stat. 2663, 2776 (1994).
During debate in the House of Representatives,
Representative Solomon urged the passage of his amendment
“on behalf of military preparedness” because “recruiting is the
key to an all-volunteer military.” 140 Cong. Rec. H3861
(daily ed. May 23, 1994). He argued that it was hypocritical
for schools to receive federal money while at the same time
denying the military access to their campuses: “[T]ell[]
recipients of Federal money at colleges and universities that if
you do not like the Armed Forces, if you do not like its
policies, that is fine. That is your [F]irst [A]mendment
right[]. But do not expect Federal dollars to support your
interference with our military recruiters.” Id. The
amendment’s co-sponsor, Representative Richard Pombo of
California, said Congress needed to target “policies of
ambivalence or hostility to our Nation’s armed services” that
are “nothing less than a backhanded slap at the honor and
dignity of service in our Nation’s Armed Forces.” Id. at
H3863. He urged his colleagues to “send a message over the
wall of the ivory tower of higher education” that colleges’ and
universities’ “starry-eyed idealism comes with a price. If they
are too good—or too righteous—to treat our Nation’s military
with the respect it deserves[,] then they may also be too good
to receive the generous level of taxpayer dollars presently
enjoyed by many institutions of higher education in America.”
Id.10
Other Representatives opposed the amendment,
alleging violations of academic freedom and civil rights. See,
e.g., id. at H3862 (Rep. Dellums) (“We should not . . . chill or
abridge privacy, speech, or conscience by threatening a
college with a Federal funds termination because it chose for
whatever reason to deny access to military recruiters . . . . We
should not browbeat them . . . into becoming involuntary
agents of Federal policy.”). In light of Vietnam War-era
legislation, rarely invoked, that already granted the DOD
discretion to withhold funding from colleges and universities
that barred military recruiters, see Pub. L. No. 92-436, § 606,
86 Stat. 734, 740 (1972), the DOD itself objected to the
proposed amendment as “unnecessary” and “duplicative.” 140
Cong. Rec. H3864 (Rep. Schroeder) (explaining the DOD’s
position). The DOD also feared that withholding funds from
universities could be potentially harmful to defense research
initiatives. Id. But the House voted for the amendment by a
vote of 271 to 126. Id. at H3865. Several months later the
Senate approved the defense spending appropriations bill,
including Representative Solomon’s amendment, and the
“Solomon Amendment” ultimately became law.
C. Subsequent Amendments and Regulatory
Interpretations
In 1997 Congress amended the Solomon Amendment
by expanding its penalty to include, in addition to DOD funds,
funds administered by other federal agencies, including the
11
Departments of Transportation,4 Labor, Health and Human
Services, and Education.5 Omnibus Consolidated
Appropriations Act, 1997, Pub. L. No. 104–208, § 514(b),
110 Stat. 3009–270 (1996). This amendment was recodified
in another amendment in 1999. National Defense
Authorization Act for Fiscal Year 2000, Pub. L. No. 106–65,
§ 549, 113 Stat. 512, 609–11 (1999). DOD regulations have
clarified this expansion, penalizing an offending
“subelement” of a college or university (i.e., a law school)
that prohibits or effectively prevents military recruiting with
the loss of federal funding from all of the federal agencies
identified in the statute, while withholding from the offending
subelement’s parent institution only DOD funds. 32 C.F.R. §
216.3(b)(1).
The 1999 amendment also codified exceptions to the
Solomon Amendment’s penalties for schools that (1) have
ceased an offending policy or practice, or (2) have a
longstanding religious-based policy of pacifism. § 549, 113
4
Department of Homeland Security funds later replaced
Department of Transportation funds. Pub. L. No. 107-296,
§ 1704(b)(1), 116 Stat. 2314 (2002).
5
A separate amendment cancelled the application of the
Solomon Amendment to direct student aid. Department of
Defense Appropriations Act of 2000, § 8120, Pub. L. No. 106-
79, 113 Stat. 1212, 1260 (1999).
12
Stat. at 610(c) (codified at 10 U.S.C. § 983(c)). DOD
regulations subsequently added a third exception for schools
that provide military recruiters a degree of access equal to that
provided to other recruiters. 32 C.F.R. § 216.4(c).
Following the 1999 amendment, the DOD enforced the
Solomon Amendment consistent with its terms. Only schools
whose policies or practices “prohibit[ed], or in effect
prevent[ed],” military representatives “from gaining entry to
campuses, or access to students . . . on campuses for purposes
of military recruiting,” were penalized. Thus, by merely
allowing military recruiters to gain access to campuses, many
law schools avoided the Solomon Amendment’s penalty while
reaffirming their opposition to the military’s exclusionary
employment policy by not providing them affirmative
assistance in the manner provided to other recruiters. Harvard
Law School, for example, allowed military recruiters on
campus to recruit at the offices of its Veterans Association but
did not volunteer its placement personnel to arrange
interviews. Boston College Law School allowed military
recruiters to conduct on-campus interviews, but kept their
literature in the library rather than in the career services
office. Until the fall of 2001, the DOD did not consider these
and other similar “ameliorative measures” to violate the
Solomon Amendment and expressed enthusiasm for the law
schools’ cooperation with what it described as successful
recruiting efforts. See FAIR, 291 F. Supp. 2d at 282 (citing
record evidence).
13
But following the terrorist attacks in the United States
in September 2001, the DOD began applying an informal
policy of requiring not only access to campuses, but treatment
equal to that accorded other recruiters. As evidence of this
informal policy, a letter from the DOD’s Acting Deputy
Undersecretary William J. Carr to Richard Levin, the
President of Yale University, stated that universities are
required “to provide military recruiters access to students
equal in quality and scope to that provided to other
recruiters.” 6 The same letter stated that the “DOD requires
that there not be a substantial disparity in the treatment of
military recruiters as compared to other potential employers.”
This changed context meant that Yale’s willingness to let
military recruiters use a room in Yale Law School’s building
for interviews would not pass muster unless it also provided
military recruiters with the same level of assistance from its
career development office (arranging interviews, posting
notices, etc.) provided to other recruiters. Furthermore, the
DOD intimated that failure to comply would result in a loss to
6
In wording the new informal policy’s substantive
requirement, the DOD borrowed language from the existing
policy’s regulatory exception—32 C.F.R. 216.4(c) (exempting
from Solomon Act compliance a law school that “presents
evidence that the degree of access by military recruiters is at
least equal in quality and scope to that afforded to other
employers”).
14
Yale University not only of DOD funds, but of all federal
funds (a penalty that is not consistent with the DOD’s existing
regulations, under which the offending subelement’s parent
institution is penalized with the loss of only DOD funds, see
32 C.F.R. § 216.3(b)(1)).
In another example, the DOD advised the University of
Southern California Law School in 2002 that its past practice
of accommodating military recruiters—providing them with
standard employer information, referring them to the campus
ROTC office for scheduling of interview office space, posting
notices in the weekly newsletter for students, and making
military recruitment materials available to students—would
violate the Solomon Amendment unless its career services
office invited military recruiters to participate in an off-
campus job fair open to other employers. According to the
DOD, anything less than equal treatment for military
recruiters “sends the message that employment in the Armed
Forces is less honorable or desirable than employment with
other organizations”—a dangerous message to be sending “in
today’s military climate.” In light of the millions of dollars at
stake, every law school that receives federal funds had, by the
2003 recruiting season, suspended its nondiscrimination
policy as applied to military recruiters.
This past summer Congress amended the Solomon
Amendment to codify the DOD’s informal policy. Ronald W.
Reagan National Defense Authorization Act for Fiscal Year
15
2005, Pub. L. No. 108–375, § 552, 118 Stat. 1811, 1911
(2004). Now, under the terms of the statute itself, law schools
and their parent institutions are penalized for preventing
military representatives from gaining entry to campuses for
the purpose of military recruiting “in a manner that is at least
equal in quality and scope to the [degree of] access to
campuses and to students that is provided to any other
employer.” 10 U.S.C. § 983(b).
D. Current Litigation
In September 2003, FAIR sued the DOD and the other
federal departments whose funds are restricted under the
Solomon Amendment, seeking on constitutional grounds a
preliminary injunction enjoining enforcement of the statute
and the then-existing (now codified) informal policy. The
Government defendants moved to dismiss for lack of
standing. The District Court denied both the motion to
dismiss and FAIR’s motion for preliminary injunction. See
FAIR, 291 F. Supp. 2d at 296, 322. This appeal followed.
II. Jurisdiction
Under 28 U.S.C. § 1331, a federal district court has
original subject matter jurisdiction over an action for
injunctive relief based on constitutional claims. Tenafly Eruv
Ass’n v. Borough of Tenafly, 309 F.3d 144, 156 n.12 (3d Cir.
16
2002), cert. denied, 539 U.S. 942 (2003).7 Our appellate
jurisdiction exists under 28 U.S.C. § 1292(a)(1).
III. Analysis
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
7
Standing must also be proper for subject matter jurisdiction
to exist. See, e.g., Storino v. Borough of Point Pleasant Beach,
322 F.3d 293, 296 (3d Cir. 2003); Charles Alan Wright &
Arthur R. Miller et al., Federal Practice & Procedure § 3531
(2d ed. 1984). The District Court held that FAIR had standing
to seek a preliminary injunction against the Solomon
Amendment, and the Government has conceded this issue on
appeal. Acknowledging our continuing obligation to verify
subject matter jurisdiction when it is in question, see, e.g., Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102, 104 (3d
Cir.), cert. granted on other grounds, No. 03-1696, 125 S. Ct.
310 (2004), we affirm the District Court’s holding that FAIR’s
standing was proper for the reasons it provided. FAIR, 291 F.
Supp. 2d at 285–91.
While the Government does not concede that the non-
FAIR plaintiffs had standing, the presence of one plaintiff with
standing is sufficient to satisfy that requirement. Bowsher v.
Synar, 478 U.S. 714, 721 (1986).
17
the public interest. Tenafly Eruv Ass’n, 309 F.3d at 157.
While we review a district court’s balancing of the
preliminary injunction factors for abuse of discretion, we
review “any determination that is a prerequisite to the
issuance of an injunction . . . according to the standard
applicable to that particular determination.” Id. at 156(citations omitted). Thus, because the District Court’s ruling
was based on its application of the First Amendment and
other constitutional principles to the Solomon
Amendment—issues of law to which a plenary standard of
review applies— our review is plenary. Id.A. Unconstitutional Conditions Doctrine
FAIR argues that the Solomon Amendment is an
unconstitutional condition.8 Under the unconstitutional
8
Our dissenting colleague urges us to begin our analysis with
the presumption that congressional statutes are constitutional.
It is a fundamental canon of statutory construction that, when
there are “‘two possible interpretations of a statute, by one of
which it would unconstitutional and by the other valid, our plain
duty is to adopt that which will save the Act.’” Rust v. Sullivan,
500 U.S. 173, 190 (1991) (quoting Blodgett v. Holden, 275 U.S.
142, 148 (1927)). But in this case it is not argued that there are
two possible constructions of the Solomon Amendment. The
canons of statutory construction therefore do not apply.
Moreover, “although a duly enacted statute normally carries
with it a presumption of constitutionality, when a [statute]
18
conditions doctrine, the Government “may not deny a benefit
to a person on a basis that infringes his constitutionally
protected interests—especially, his interest in freedom of
speech.” Perry v. Sindermann, 408 U.S. 593, 597 (1972). If
Congress “could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise
of those freedoms would in effect be penalized and inhibited.”
Id. Put another way, the Government may not propose a
penalty to “produce a result which [it] could not command
directly.” Speiser v. Randall, 357 U.S. 513, 526 (1958) (state
could not condition property tax exemption on loyalty oath);
see also Rosenberger v. Rectors & Visitors of the Univ. of Va.,
515 U.S. 819 (1995) (public university could not condition
funds for student publications on their secular perspective);
FCC v. League of Women Voters, 468 U.S. 364 (1984) (FCC
could not condition federal funds to radio stations on editorial
content). Thus, if the law schools’ compliance with the
Solomon Amendment compromises their First Amendment
rights, the statute is an unconstitutional condition.9
allegedly infringes on the exercise of [F]irst [A]mendment
rights, the statute’s proponent bears the burden of establishing
[its] constitutionality.” ACORN v. City of Frontenac, 714 F.2d
813, 817 (8th Cir. 1983) (citing Org. for a Better Austin v.
Keefe, 402 U.S. 415, 419 (1971)).
9
As the District Court noted, the Supreme Court’s exception
to the unconstitutional conditions doctrine for selective spending
programs does not apply here. FAIR, 291 F. Supp. 2d at
19
B. First Amendment Analysis
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. This simple commandment plays out
differently depending on the avenue of analysis. Two
avenues applicable here are: (1) whether the law schools are
“expressive associations” whose First Amendment right to
disseminate their chosen message is impaired by the inclusion
of military recruiters on their campuses; and (2) whether the
law schools are insulated by free speech protections from
being compelled to assist military recruiters in the expressive
299–300. When the Government appropriates for a particular
spending program, it may endorse one viewpoint over another
by conditioning its spending on certain criteria. United States v.
Am. Library Ass’n, 539 U.S. 194, 211 (2003) (providing library
assistance funds to only those libraries who agree to block
obscene Internet sites); Rust, 500 U.S. at 192–93 (funding
family planning services that eschew abortion counseling). In
those cases, “the Government [was] not denying a benefit to
anyone, but [was] instead simply insisting that public funds be
spent for the purposes for which they were authorized.” Rust,
500 U.S. at 196; see also Am. Library Ass’n, 539 U.S. at 211.
That exception does not apply in our case because the Solomon
Amendment does not create a spending program; it merely
imposes a penalty—the loss of general funds.
20
act of recruiting.10
A violation of freedom of speech under either
analytical approach draws down the curtain on Solomon
Amendment enforcement unless the Government can
establish that the statute withstands strict scrutiny. The levels
of scrutiny applicable in the First Amendment context are
crucial. A regulation that disrupts an expressive association
or compels speech must be narrowly tailored to serve a
compelling governmental interest, and must use the least
restrictive means of promoting the Government’s asserted
interest (here, recruiting talented lawyers). See infra Parts
10
FAIR also argues that the Solomon Amendment and the
then-existing informal policy are void under the First
Amendment’s vagueness doctrine because they provide
insufficient notice as to what activities will trigger funding
penalties. But the statutory amendment enacted during FAIR’s
pending appeal, see supra Part I.C, has rendered moot both the
challenge to the Solomon Amendment, see Black United Fund
of N.J., Inc. v. Kean, 763 F.2d 156, 160 (3d Cir. 1985), and the
challenge to the regulatory policy, see Prometheus Radio
Project, Inc. v. FCC, 373 F.3d 372, 396 (3d Cir. 2004). The
recent amendment to the Solomon Amendment does not,
however, moot FAIR’s other challenges to it. See Northeastern
Fla. Chapter of the Associated Gen. Contractors of Am. v. City
of Jacksonville, 508 U.S. 656, 662 (1993) (stating that a
challenge to a statute is not moot when the new version of it
“disadvantages [appellants] in the same fundamental way”).
21
III.B.1(c), 2(e). Needless to say, this is an imposing barrier.
The District Court, by contrast, emphasized a third
potential theory of this case that invokes only intermediate
scrutiny, i.e., whether the government action at issue furthers
an important government interest that would be achieved less
effectively without that action. The Court asked whether the
law schools’ resistance to the Solomon Amendment is
sufficiently communicative to bring it within the ambit of the
First Amendment’s protection for “expressive conduct,” the
suppression of which receives intermediate scrutiny under
United States v. O’Brien, 391 U.S. 367 (1968). See infra Part
III.B.3(b). We emphasize at the outset that we need not
decide this issue because we conclude that the Solomon
Amendment violates the First Amendment by impeding the
law schools’ rights of expressive association and by
compelling them to assist in the expressive act of recruiting.
Nonetheless, we explain briefly our conclusion that FAIR
would prevail even under O’Brien’s less strict framework.
1. Expressive Association
FAIR argues that the Solomon Amendment impairs
law schools’ First Amendment rights under the doctrine of
expressive association. The Supreme Court most recently
addressed this doctrine in Boy Scouts of America v. Dale, 530
U.S. 640 (2000). There the Court held that a state public
accommodations law that prohibited discrimination based on
22
sexual orientation could not constitutionally be invoked to
force the Boy Scouts to accept openly gay James Dale as an
assistant scoutmaster. Id. at 659. Central to its analysis was
the deference it gave to the Boy Scouts’ “view of what would
impair its expression,” which compelled the Court’s
conclusion that Dale’s presence would “significantly burden
the Boy Scouts’ desire to not ‘promote homosexual conduct
as a legitimate form of behavior.’” Id. at 653 (citation
omitted).
Under Dale, the elements of an expressive association
claim are (1) whether the group is an “expressive
association,” (2) whether the state action at issue significantly
affects the group’s ability to advocate its viewpoint, and (3)
whether the state’s interest justifies the burden it imposes on
the group’s expressive association. Id. at 648–58; accord
The Circle School v. Pappert, 381 F.3d 172, 181-82 (3d Cir.
2004) (applying the Dale framework); Pi Lambda Phi
Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d
Cir. 2000) (same). We apply each in turn to analyze FAIR’s
expressive association claim.
(a) The law schools are expressive
associations.
A group that engages in some form of public or private
expression above a de minimis threshold is an “expressive
association.” Pi Lambda Phi, 229 F.3d at 443. The group
23
need not be an advocacy group or exist primarily for the
purpose of expression. Dale, 530 U.S. at 648. The Supreme
Court held that the Boy Scouts, which “seeks to transmit . . . a
system of values, engages in expressive activity.” Id. at 650.
“By nature, educational institutions are highly
expressive organizations, as their philosophy and values are
directly inculcated in their students.” The Circle School, 381
F.3d at 182. Because FAIR has shown that the law schools
“possess[] clear educational philosophies, missions and
goals,” id., we agree with the District Court’s conclusion that
they qualify as expressive associations. FAIR, 291 F. Supp.
2d at 303–04. Therefore, FAIR satisfies the first element of
the Dale analysis.
(b) The Solomon Amendment significantly
affects the law schools’ ability to express
their viewpoint.
FAIR argues that the Solomon Amendment
significantly affects law schools’ ability to express their
viewpoint, reflected in their policies, that discrimination on
the basis of sexual orientation is wrong. The Solomon
Amendment compels them, they contend, to disseminate the
opposite message. The schools believe that, by coordinating
interviews and posting and publishing recruiting notices of an
employer who discriminates on the basis of sexual orientation,
they impair their ability to teach an inclusive message by
24
example. Put another way, FAIR maintains that the Solomon
Amendment suppresses the law schools’ chosen speech by
interfering with their prerogative to shape the way they
educate (including, of course, the manner in which they
communicate their message).
In Dale, the Supreme Court recognized that “[t]he
forced inclusion of an unwanted person in a group” could
significantly affect the group’s ability to advocate its public or
private viewpoint. 530 U.S. at 648. The viewpoint at issue in
Dale was the Boy Scouts’ long-held belief that “homosexual
conduct is inconsistent with . . . the Scout Oath” and that
“homosexuals [do not] provide a role model consistent with
the[] expectations [of Scouting families].” Id. at 652.
Because the Boy Scouts’ expressive purpose was to “inculcate
[youth] with the Boy Scouts’ values—both expressively and
by example,” id. at 649–50, the organization believed that the
presence of an openly gay assistant scoutmaster could be
perceived as “promot[ing] homosexual conduct as a
legitimate form of behavior,” a message inconsistent with the
expression it wished to convey and the example it wished to
set. Id. at 651.
The Supreme Court agreed. Because James Dale was
openly gay, his “presence in the Boy Scouts would, at the very
least, force the organization to send a message, both to youth
members and the world, that the Boy Scouts accepts
homosexual conduct as a legitimate form of behavior.” Id. at
25
653.
Just as the Boy Scouts believed that “homosexual
conduct is inconsistent with the Scout Oath,” id. at 652, the
law schools believe that employment discrimination is
inconsistent with their commitment to justice and fairness.
Just as the Boy Scouts maintained that “homosexuals do not
provide a role model consistent with the expectations of
Scouting families,” id., the law schools maintain that military
recruiters engaging in exclusionary hiring “do not provide a
role model consistent with the expectations of,” id., their
students and the legal community. Just as the Boy Scouts
endeavored to “inculcate [youth] with the Boy Scouts’
values—both expressively and by example,” id. at 649–50,
the law schools endeavor to “inculcate” their students with
their chosen values by expression and example in the
promulgation and enforcement of their nondiscrimination
policies. FAIR Br. at 22–25. And just as “Dale’s presence in
the Boy Scouts would, at the very least, force the organization
to send a message, both to youth members and the world, that
the Boy Scouts accepts homosexual conduct as a legitimate
form of behavior,” Dale, 530 U.S. at 653, the presence of
military recruiters “would, at the very least, force the law
schools to send a message,” both to students and the legal
community, that the law schools “accept” employment
discrimination “as a legitimate form of behavior.” Id.Notwithstanding this compelling analogy, the District
26
Court distinguished our case from Dale by suggesting there
was a critical difference between the forced inclusion of a gay
assistant scoutmaster and the forced presence of an
“unwanted periodic visitor,” the military recruiter, in the
context of a larger recruiting effort. FAIR, 291 F. Supp. 2d at
304, 305. While there was “no question” that the gay
scoutmaster would “undermine the Boy Scouts’ ability
to . . . inculcate its values in younger members,” the District
Court wrote, the Solomon Amendment does not compel the
law schools to accept the military recruiters as a “member”
and does not “bestow upon them any semblance of authority.”
Id. at 305.
But our Court has recently held that compulsory
accommodation of a government-prescribed message may
violate schools’ First Amendment expressive association
rights, even when that message involves our most revered
affirmations of American patriotism—the Pledge of
Allegiance and our National Anthem, is only minimally
intrusive and lacks the schools’ imprimatur. The Circle
School, 381 F.3d at 182 (holding that a statute requiring
private schools to lead the Pledge of Allegiance and National
Anthem violates their rights under the expressive association
doctrine—“Certainly, the temporal duration of a burden on
First Amendment rights is not determinative of whether there
is a constitutional violation . . . . Similarly, the fact that the
schools can issue a general disclaimer does not erase the First
Amendment infringement at issue here, for the schools are
27
still compelled to speak the [Government’s] message.”). If
the Pledge and Anthem “only take[] a very short period of
time each day,” and may be preceded by “a general disclaimer
regarding the recitation,” yet do not “erase the First
Amendment infringement at issue here,” id., then focusing on
the periodic nature of the military recruiter’s visits 11 is
similarly unavailing.
Moreover, the District Court’s scrutiny of the law
schools’ belief that the presence of military recruiters will
undermine their expressive message about fairness and social
justice violates the Dale Court’s instruction to “give
deference to an association’s view of what would impair its
expression.” 530 U.S. at 653.12 In Dale, the Court did more
11
Furthermore, the Solomon Amendment requires law schools
to do more than passively accept the presence of an “unwanted
periodic visitor.” They must actively assist military recruiters in
a manner equal in quality and scope to the assistance they
provide other recruiters. 10 U.S.C. § 983(b)(1).
12
Dale may appear to depart from prior Supreme Court
jurisprudence in this area. In two expressive association cases
from the 1980s, the Court considered the claims of civic
associations that state statutes forcing them to accept women as
members violated their expressive association rights. Bd. of
Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537(1987); Roberts v. United States Jaycees, 468 U.S. 609 (1984).
Closer review explains the distinction from Dale. In both cases
28
than pay lip service to deference notions. Deference
distinguished the Supreme Court’s conclusion on the
impairment question from that of the New Jersey Supreme
Court, which had decided the case previously. The state court
had ruled in Dale’s favor, holding that because the Boy
Scouts have a policy of “discourag[ing] its leaders from
disseminating any views on sexual issues,” Dale’s presence
the Court examined the organizations’ expressive charitable and
humanitarian purposes and determined that they would not be
impaired by the forced inclusion of women members. Duarte,
481 U.S. at 548–49; Roberts, 468 U.S. at 626–27. The
difference in outcome between these cases and Dale—the civic
associations had to admit women, but the Boy Scouts did not
have to admit Dale—underscores the significance of the Court’s
decision to extend “deference to an association’s view of what
would impair its expression.” 530 U.S. at 653.
Moreover, we note that the Supreme Court had
previously extended deference to what an expressive association
said would impair its expression. E.g., Meyer v. Grant, 486 U.S.
414, 424 (1988) (“The First Amendment protects appellees’
right not only to advocate their cause but also to select what they
believe to be the most effective means for so doing.”);
Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107,
123–24 (1981) (“[A] court[] may not constitutionally substitute
its own judgment for that of the Party. A political party’s choice
among the various ways of determining the makeup of a State’s
delegation to the party’s national convention is protected by the
Constitution.”).
29
would not significantly affect its ability to disseminate its
message. 530 U.S. at 654 (citing Dale v. Boy Scouts of
America, 734 A.2d 1196, 1223 (N.J. 1999) (emphasis in
original)). But faced with competing views— the Boy Scouts’
view that Dale’s presence impaired their message and the
state court’s view that it could not— the Supreme Court
deferred to the Boy Scouts’ view. In other words, the reason
why there was “no question” (in the District Court’s words in
our case, 291 F. Supp. 2d at 305) that a gay scoutmaster
would undermine the Boy Scouts’ message was because the
Boy Scouts said it would. Dale, 530 U.S. at 653. In our case,
FAIR has supplied written evidence of its belief that the
Solomon Amendment’s forcible inclusion of and assistance to
military recruiters undermines their efforts to disseminate
their chosen message of nondiscrimination. Accordingly, we
must give Dale deference to this belief,13 and conclude that
13
Furthermore, the law schools are entitled to at least as much
deference as the Boy Scouts, as the Supreme Court has
recognized in other contexts that universities and law schools
“occupy a special niche in our constitutional tradition,” Grutter
v. Bollinger, 539 U.S. 306, 329 (2003), because of their “vital
role in . . . democracy,” Sweezy v. New Hampshire, 354 U.S.
234, 250 (1957). The Court has acknowledged the importance
of “autonomous decisionmaking by the academy.” Regents of
the Univ. of Mich. v. Ewing, 474 U.S. 214, 226 n.12 (1985);
Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring)
(recognizing “four essential freedoms” of a university “to
determine for itself on academic grounds who may teach, what
30
FAIR likely satisfies the second element of an expressive
association claim.
(c) Balancing of interests
The third step in evaluating an expressive association
claim is “balancing the First Amendment interests implicated
by the Solomon Amendment with competing societal interests
to determine whether the statute transgresses constitutional
boundaries.” FAIR, 291 F. Supp. 2d at 310.14 We need not
linger on this analysis. Rarely has government action been
deemed so integral to the advancement of a compelling
may be taught, how it shall be taught, and who may be admitted
to study”). The Supreme Court’s academic freedom
jurisprudence thus underscores the importance of Dale
deference in our case.
14
The District Court rejected FAIR’s argument that strict
scrutiny applies because it did not believe that the Solomon
Amendment directly burdens expressive association rights.
FAIR, 291 F. Supp. 2d at 310–311. But because we concluded
at step two that the Solomon Amendment impairs law schools’
expression, strict scrutiny will apply. Dale, 530 U.S. at 659(rejecting the argument that only intermediate scrutiny should
apply); The Circle School, 381 F.3d at 182 (applying strict
scrutiny to statute impairing schools’ expressive association
rights by requiring them to lead the Pledge of Allegiance and
National Anthem).
31
purpose as to justify the suppression or compulsion of speech.
We presume that the Government has a compelling interest in
attracting talented military lawyers.15 But “[i]t is not enough
15
Our colleague in dissent states that “[w]e do not write on a
clean slate regarding the importance Congress places in access
to college and university facilities by the military” and that
“[w]e have already decided that issue contrary to the argument
pressed by Appellants.” In United States v. City of
Philadelphia, 798 F.2d 81 (3d Cir. 1986), our Court
acknowledged that “Congress considers access to college and
university employment facilities by military recruiters to be a
matter of paramount importance.” Id. at 86. City of
Philadelphia, however, is distinguishable from this case in two
important respects. First, in that case the university invited the
military recruiters on campus; the recruiters’ presence was not
effectively dictated by a statute, as is the case here. Id. at 83.
Second, City of Philadelphia engaged in a conflict preemption
analysis and held that, because it was not possible for the
university to comply with both a Philadelphia anti-
discrimination ordinance and the clear congressional policy
concerning military recruitment on campus, the ordinance was
preempted. Id. at 88–89. Our Court did not reach a balancing-
of-interests inquiry. Therefore, neither this Court’s prior
acknowledgment of the importance Congress places on military
recruiting on college and university campuses, nor our
presumption in this case that there is an important governmental
interest in attracting talented lawyers to the military, ends our
analysis. Rather, we must go on to reach an issue that was not
present in City of Philadelphia—whether the Solomon
32
to show that the Government’s ends are compelling; the
means must be carefully tailored to achieve those ends.”
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115,
126 (1989).
As we explain in the final section of our opinion, infra
Part III.B.3(b), the Solomon Amendment could barely be
tailored more broadly. Unlike a typical employer, the military
has ample resources to recruit through alternative means. For
example, it may generate student interest by means of loan
repayment programs. And it may use sophisticated
recruitment devices that are generally too expensive for use
by civilian recruiters, such as television and radio
advertisements. These methods do not require the assistance
of law school space or personnel. And while they may be
more costly, the Government has given us no reason to
suspect that they are less effective than on-campus recruiting.
The availability of alternative, less speech-restrictive
means of effective recruitment is sufficient to render the
Solomon Amendment unconstitutional under strict scrutiny
analysis. Sable, 492 U.S. at 126; The Circle School, 381 F.3d
at 182. But our path in this case is even clearer. The
Government has failed to proffer a shred of evidence that the
Amendment is narrowly tailored to achieve the Government’s
ends.
33
Solomon Amendment materially enhances its stated goal.
And not only might other methods of recruitment yield
acceptable results, they might actually fare better than the
current system. In fact, it may plausibly be the case that the
Solomon Amendment, which has generated much ill will
toward the military on law school campuses,16 actually
impedes recruitment. 17
16
See, e.g., FAIR, 291 F. Supp. 2d at 282 (describing record
evidence of student protests over military recruiting).
17
The dissent, applying the balancing-of-interests test from
Roberts, 468 U.S. at 620, comes to the opposite
conclusion—“that the law schools’ interests here fall at the
remote extreme of Justice Brennan’s spectrum–‘where that
relationship’s objective characteristics locate it . . . [near] the
most attenuated of personal attachments.’” This balancing test,
however, comes not from the portion of Roberts dealing with
freedom of expressive association, but from the portion dealing
with freedom of intimate association. The law schools are
clearly not intimate associations, and where they may fall on the
spectrum articulated by Justice Brennan for determining whether
particular relationships merit protection under that doctrine is
irrelevant to our analysis here. In Roberts, the Court went on to
engage in a strict scrutiny expressive association analysis and
applied the balancing test we apply here, determining that the
Government had a compelling interest in eliminating
discrimination and that the statute at issue was the least
restrictive means of achieving that end. Roberts, 468 U.S. at
620.
34
* * * * *
FAIR likely satisfies the three elements of an
expressive association claim. The law schools are expressive
associations, they believe the message they choose to express
is impaired by the Solomon Amendment, and no compelling
governmental interest exists in the record to justify this
impairment. Therefore, FAIR has a reasonable likelihood of
success on the merits of its expressive association claim
against the Solomon Amendment.
2. Compelled Speech
The Supreme Court has long recognized that, in
addition to restricting suppression of speech, “the First
Amendment may prevent the government from
. . . compelling individuals to express certain views.” United
States v. United Foods, Inc., 533 U.S. 405, 410 (2001) (citing,
inter alia, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624(1943)). “At the heart of the First Amendment lies the
principle that each person should decide for himself or herself
the ideas and beliefs deserving of expression, consideration,
and adherence.” Turner Broad. Sys, Inc. v. FCC, 512 U.S.
622, 641 (1994).
Consistent with this principle, the Supreme Court has
found impermissible compelled speech in three categories of
government action. The first is government action that forces
35
a private speaker to propagate a particular message chosen by
a government. See Barnette, 319 U.S. at 642 (state could not
enforce compulsory flag salute statute); Wooley v. Maynard,
430 U.S. 705, 717 (1977) (state could not require drivers to
display state motto on their license plates). The second is
government action that forces a private speaker to
accommodate or include another private speaker’s message.
See Hurley v. Irish-American Gay, Lesbian, & Bisexual
Group of Boston, 515 U.S. 557, 581 (1995) (state
nondiscrimination statute could not be constitutionally applied
to require parade organizers to include a contingent of gay
marchers behind their own banner); Pacific Gas & Elec. Co.
v. Pub. Utils. Comm’n, 475 U.S. 1, 12–16 (1986) (state
regulatory commission could not require public utility to
distribute ratepayer-group’s message in the extra space of the
utility’s billing statements); Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241, 258 (1974) (state could not force
newspaper to provide equal editorial-page space to candidates
it opposes). The third category is government action that
forces an individual to subsidize or contribute to an
organization that engages in speech that the individual
opposes. See United Foods, 533 U.S. at 413 (Congress could
not require mushroom growers to pay assessments to fund
advertisements to promote mushroom sales); Abood v. Detroit
Bd. of Educ., 431 U.S. 209, 235 (1977) (state could not
compel non-union employees to pay union dues to promote
36
union causes). 18 FAIR argues that the Solomon Amendment
forces law schools to propagate, accommodate, and subsidize
the military’s recruiting, and therefore implicates each of the
three varieties of compelled speech cases.
The District Court rejected FAIR’s argument and held
that the law schools are not compelled to express a particular
ideological message by admitting and actively assisting the
military recruiters. We disagree. As we explain in the
analysis that follows, the military’s recruiting is expressive of
a message with which the law schools disagree. To comply
with the Solomon Amendment, the law schools must
affirmatively assist military recruiters in the same manner
they assist other recruiters, which means they must propagate,
accommodate, and subsidize the military’s message. In so
doing, the Solomon Amendment conditions funding on a
basis that violates the law schools’ First Amendment rights
under the compelled speech doctrine.
(a) Recruiting is expression.
The expressive nature of recruiting is evident by the
oral and written communication that recruiting entails:
published and posted announcements of the recruiter’s visit,
18
We note that the subsidization line of compelled speech case
law is the only one of these three categories addressed by the
dissent.
37
published and oral descriptions of the employer and the jobs it
is trying to fill, 19 and the oral communication of an
employer’s recruiting reception and one-on-one interviews.
The expressive nature of recruiting is also evident in its
purpose—to convince prospective employees that an
employer is worth working for. So understood, recruiting
necessarily involves “communication of information, the
dissemination and propagation of views and ideas, and the
advocacy of causes”—the hallmarks of First Amendment
expression. Village of Schaumburg v. Citizens for a Better
Env’t, 444 U.S. 620, 632 (1980) (soliciting for charitable
cause is expression entitled to First Amendment protection);
see also Thomas v. Collins, 323 U.S. 516, 538 (1945)
(recognizing First Amendment protection for the solicitation
of union members).
The District Court held that recruiting is not expressive
activity because it “differs dramatically” from other forms of
expressive activity, such as soliciting contributions and
19
For example, most recruiters submit a National Association
for Law Placement (“NALP”) form that, as NALP puts it,
“offers employers a thorough yet succinct way to tell their story
to candidates” and includes a “narrative” section to “discuss the
special characteristics” of the employer. NALP compiles these
forms into a directory, which is distributed and/or made
available by both law schools and employers to prospective
employees.
38
proselytizing. While soliciting and proselytizing cannot be
separated from the “concomitant advocacy of a particular case
or viewpoint,” the District Court reasoned, recruiting does not
advocate any particular cause but only has “an economic or
functional motive.” FAIR, 291 F. Supp. 2d at 307–08.
We agree with the District Court that soliciting and
proselytizing are obvious forms of expressive activity. We
part, however, on the notion that efforts to raise a legal staff
are “economic or functional” while efforts to raise funds and
membership are not. Recruiting, soliciting and proselytizing
are similarly economic and functional and, at the same time,
similarly expressive. Recruiting conveys the message that
“our organization is worth working for,” while soliciting and
proselytizing convey the similar functional message that “our
charity is worth giving to” or “our cause is worth joining.”
Having determined that recruiting is expressive, we
now turn to the law schools’ disagreement with that
expression.
(b) The law schools’ disagreement with the
speech of military recruiters.
Military recruiters visiting law school campuses
undoubtedly speak to students about the benefits of a career in
the military, and the Solomon Amendment requires law
schools to accept this speech. The law schools do not seem to
39
take issue with most of the “expressions of value, opinion, or
endorsement,” Hurley, 515 U.S. at 573, made by military
recruiters on campus (to the extent recruiters suggest that
military careers are honorable and rewarding experiences).
Nor, for the most part, do military recruiters describing
careers in the military make “statements of fact the [law
schools] would rather avoid.” Id.
The law schools’ lack of objection to most of the
speech they are forced to accept within their fora raises a key
question under the compelled speech doctrine: to what extent
must they disagree with the Government’s message in order
for strict scrutiny to apply? Justice Souter’s dissent in
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457(1997), summarized the Court’s jurisprudence to that time in
suggesting that it is not necessary to show disagreement in
order to sustain a compelled speech challenge.
[T]he requirement of disagreement finds no
legal warrant in our compelled-speech cases. In
Riley [v. Fed’n of the Blind of North Carolina,
Inc., 487 U.S. 781 (1988)], for example, we
held that the free-speech rights of charitable
solicitors were infringed by a law compelling
statements of fact with which the objectors
could not, and did not profess to, disagree. See
487 U.S., at 497-98, 108 S.Ct., at 2677-2678.
See also Hurley, 515 U.S., at 573, 115 S.Ct., at
40
2347 (“[The] general rule, that the speaker has
the right to tailor the speech, applies not only to
expressions of value, opinion, or endorsement,
but equally to statements of fact the speaker
would rather avoid . . . [.]”); Barnette, 319 U.S.,
at 635, 63 S.Ct., at 1183-1184 (if the Free
Speech Clause bars the government from
making the flag salute a legal duty,
nonconformist beliefs are not required to
exempt one from saluting). Indeed, the Abood
cases themselves protect objecting employees
from being forced to subsidize ideological
union activities unrelated to collective
bargaining, without any requirement that the
objectors declare that they disagree with the
positions espoused by the union. See, e.g.,
[Chicago Teachers Union v. Hudson, 475 U.S.
292, 301-02 (1986)]; Abood, 431 U.S., at 234,
97 S.Ct., at 1799. Requiring a profession of
disagreement is likewise at odds with our
holding two Terms ago that no articulable
message is necessary for expression to be
protected, Hurley, supra, at 569, 115 S.Ct., at
2345; protection of speech is not limited to
clear-cut propositions subject to assent or
contradiction, but covers a broader sphere of
expressive preference. . . . One need not
“disagree” with an abstractionist when buying a
41
canvas from a representational painter; one
merely wishes to support a different act of
expression.
Glickman, 521 U.S. at 488–89 (Souter, J., dissenting, joined
by Rehnquist, C.J., Scalia, J., and Thomas, J.).
Despite the numerous precedents to the contrary
discussed by Justice Souter, it is possible to read the Glickman
majority as implicitly endorsing a disagreement requirement
in the compelled speech context. Glickman involved a First
Amendment challenge to regulations requiring fruit growers,
handlers, and processors to finance generic advertising of
California nectarines, plums, and peaches. Id. at 460. The
majority “presume[d]” that the fruit growers, handlers, and
processors “agree[d] with the central message of the speech
that is generated by the generic [government] program [at
issue],” and stated that “compelled speech case law” was
“inapplicable” because the scheme at issue did not, inter alia,
“require them to use their own property to convey an
antagonistic ideological message,” or “force them to respond
to a hostile message when they would prefer to remain silent,”
id. at 470–71 (citations and internal quotation marks omitted)
(emphases added). However, because the degree of
disagreement that may be required is minimal and in any
event is present in this case, we need not determine whether
such a requirement exists nor, if so, decipher its precise
bounds.
42
As our dissenting colleague recently explained, the
“individual’s disagreement [in a compelled speech case] can
be minor, as ‘[t]he general rule is that the speaker and the
audience, not the government, assess the value of the
information presented.’” Cochran v. Veneman, 359 F.3d 263,
275 (3d Cir. 2004) (quoting United Foods, 533 U.S. at 411).
In Cochran, we held unconstitutional a law requiring dairy
producers to pay small assessments in support of “generic
advertising that promotes milk.” Id. Although the aggrieved
dairy producers did not disapprove of the pro-milk message at
issue, the ads featured milk “produced by methods they
view[ed] as wasteful and harmful to the environment,” and
did not promote milk produced by their own favored methods.
Id. The ads, in effect, served to promote milk produced by
efforts with which the plaintiff dairy producers disagreed.
Here the law schools similarly object to conveying the
message that all employers are equal, and instead would
rather only open their fora and use their resources to support
employers who, in their eyes, do not discriminate against
gays. This objection constitutes as much of a protected First
Amendment interest as the objection of the dairy farmers in
Cochran. Moreover, there is at least one important sense in
which the law schools strenuously disagree with the very
words spoken by military recruiters that the Solomon
Amendment compels them to accept and to which they have
been forced to respond. 10 U.S.C. § 654(b) prohibits open,
practicing gays from serving in the armed forces. Military
43
recruiters undisputedly are bound by § 654(b), and do not
recruit gay persons for service. Unsurprisingly, in light of
§ 654(b), the record demonstrates that openly gay persons
who meet with military recruiters are told by the recruiters
that they may not pursue military careers.20 Such speech by
military recruiters is perhaps the most discordant speech the
Solomon Amendment compels the law schools to accept.
Yet, as we have indicated, the act of being forced to accept
speech promoting an employer whose discriminatory policies
the law schools disagree with is sufficient “disagreement” to
bring the Solomon Amendment within the Supreme Court’s
compelled speech jurisprudence.
Thus, unlike the regulatory scheme at issue in
Glickman, the Solomon Amendment, by requiring law schools
to open their fora to military recruiters when they would
prefer to do so only for non-discriminating employers,
“require[s] them to use their own property to convey an
antagonistic ideological message.” Glickman, 521 U.S. at
471. Likewise, by directly providing “access” to campuses
for speech by military recruiters where law students are told
that openly gay applicants may not serve, the Solomon
Amendment requires the law schools to allow an
20
See JA107 (former ROTC student who had “wanted to be an
officer in the JAG Corps since high school” interviewed with
military recruiter, admitted his homosexuality, and was told that
he was “ineligible due to his sexual orientation”).
44
objectionable message counter to their beliefs. In addition,
both forms of speech with which the law schools disagree
have resulted in, according to the record, hundreds (if not
thousands) of instances of responsive speech by members of
the law school communities (administrators, faculty, and
students), including various broadcast e-mails by law school
administrators to their communities, posters in protest of
military recruiter visits, and open fora held to “ameliorate” the
effects of forced on-campus speech by military recruiters. All
of these represent instances in which the schools were
“force[d] . . . to respond to a hostile message when they
would prefer to remain silent.” Id. (internal quotation marks
omitted). Therefore, the degree of the law schools’
disagreement with the military recruiters’ expression is
sufficient to warrant First Amendment protection. We now
determine whether the Solomon Amendment compels the law
schools to engage in that expression.
(c) The law schools must propagate,
accommodate, and subsidize the
military’s expressive message.
Reasoning that the Solomon Amendment was not “an
outright regulation on speech,” the District Court held that the
Supreme Court’s compelled speech doctrine did not apply.
FAIR, 291 F. Supp. 2d at 309. Put another way, the District
Court concluded that the statute does not “directly requir[e] a
private speaker to participate in the dissemination of a
45
particular message.” Id.We disagree. Having concluded above that recruiting
is expression, we believe that the Solomon Amendment
compels the law schools to engage in that expression in all
three proscribed ways: propagation, accommodation, and
subsidy. The statute insists not only on access to campus for
military recruiters, but the active and equal assistance of law
schools’ career services offices. For example, Harvard Law
School’s career services staff offers to assist employers to
“get [their] message out to students in an effective manner.”
Like many law schools, the assistance Harvard provides
includes coordinating interviews with students, counseling
employers on effective recruiting, stuffing students’
mailboxes with employers’ information, scheduling social
receptions for students, and printing employers’
announcements in the School’s newsletter. Under the express
terms of the Solomon Amendment, law schools like Harvard
must do the same for the military recruiters.
By requiring law schools to help military recruiters
“get [their] message out to students” by distributing
newsletters and posting notices, the Solomon Amendment
compels law schools to propagate the military’s message.
Like the forced display of an unwanted motto on one’s license
plate, or the compulsory recitation of a pledge, this is
compelled speech. Wooley, 430 U.S. at 717; Barnette, 319
U.S. at 642. By requiring schools to include military
46
recruiters in the interviews and recruiting receptions the
schools arrange, the Solomon Amendment compels the
schools to accommodate the military’s message in the
recruiting-assistance programs they provide for other
employers. Like the forced inclusion of a parade contingent,
a statement in the extra space of a utility’s billing statement,
or a response in a newspaper’s editorial page, this is
compelled speech. See Hurley, 515 U.S. at 569–81; Pacific
Gas, 475 U.S. at 12–16; Miami Herald, 418 U.S. at 255–58.
And by putting demands on the law schools’ employees and
resources,21 the schools are compelled to subsidize the
military’s recruiting message. Like mandatory assessments to
support advertisements or political funds, this is compelled
speech. See United Foods, 533 U.S. at 411–17; Abood, 431
U.S. at 235.
(d) The Solomon Amendment prohibits
disclaimers and, even if it did not, risk of
misattribution is not an element of a
compelled speech violation.
21
While we recognize that the relative cost of providing these
services to one particular employer is marginal, the Supreme
Court has never required that compelled subsidies be substantial
to present a constitutional concern. See, e.g., United Foods, 533
U.S. at 408 (mushroom assessment at issue was one cent per
pound and only some of it was going toward the objectionable
advertising).
47
The District Court suggested that assisting military
recruiters is not “obvious endorsement” by the law schools of
the military’s point of view because “law schools can
effectively disclaim any recruiting message and can easily
distance themselves ideologically from the military
recruiters.” FAIR, 291 F. Supp. 2d at 308, 310. But the
Solomon Amendment, as recently amended, does not appear
to permit law schools to disclaim the military’s message. Its
express terms require them to provide treatment to the
military recruiters “equal in quality and scope” to that
provided to other employers. As the law schools do not
disclaim the messages of those employers, similarly they may
not disclaim the message of the military. Furthermore, it was
in apparent response to the law schools’ ameliorative
measures—their efforts to “distance themselves” (in the
District Court’s words) from the military’s position—that the
DOD and eventually Congress insisted on equal treatment for
military recruiters.
But even if the Solomon Amendment allowed for
disclaimers, the Supreme Court has never held that compelled
speech concerns evaporate if a speaker can ameliorate the risk
of misattribution by disclaiming the message it is being
compelled to propagate. To the contrary, “the presence of a
disclaimer . . . does not suffice to eliminate the impermissible
pressure . . . to respond to [compelled] speech.” Pacific Gas,
475 U.S. at 15 n.11 (plurality opinion). While a disclaimer
reduces the risk that readers will misattribute the message, it
48
“does nothing to reduce the risk that [the compelled speaker]
will be forced to respond when there is strong disagreement
with the substance of [the] message.” Id. Thus, in Pacific
Gas, the Supreme Court invalidated as compelled speech a
requirement that a utility share the extra space in its billing
statements with an organization that opposed its viewpoint.
The utility’s ability to include a disclaimer did not change the
analysis. In fact, a “forced reply” may add to the injury of
compelled speech, not its cure. Id. at 15–16 (noting that the
“pressure to respond” to compelled speech is “antithetical to
the free discussion that the First Amendment seeks to foster”).
In Miami Herald, the Supreme Court also invalidated a
state law compelling newspapers to provide editorial page
space to any political candidates that the newspaper assailed
in an editorial. 418 U.S. at 255–58. It did not suggest that a
newspaper could alleviate compelled speech by running a
disclaimer above the candidate’s message.22
22
While the newspapers could avoid triggering the penalty of
having to provide editorial page space to assailed candidates by
not criticizing any candidates at all, the Court noted that this
self-censorship was a form of speech suppression, itself a First
Amendment injury. 418 U.S. at 257. Our case presents this
self-censorship concern as well, as the law schools could avoid
triggering—or at least minimize—the quality and scope of
active assistance they must provide to military recruiters by
limiting the quality and scope of their assistance to other
49
Similarly, in Wooley the Court held that the state motto
on the Maynards’ license plate was compelled speech even
though the state supreme court had expressly found in another
case that “nothing in the state law . . . precludes appellees
from displaying their disagreement with the state motto as
long as the methods used do not obscure the license plates.”
430 U.S. at 722 (Rehnquist, J., dissenting) (citing State v.
Hoskin, 295 A.2d 454 (1972)). 23 On the facts of Wooley,
recruiters.
23
The Supreme Court has expressed concerns about
misattribution and ability to disclaim in several of its compelled
speech cases. See Hurley, 515 U.S. at 556–57 (noting that
parade organizers do not customarily “disavow ‘any identity of
viewpoint’ between themselves and the selected participants”
and that “such disclaimers would be quite curious in a moving
parade”); Turner Broadcast System v. FCC, 512 U.S. 622 (1994)
(“TBS”) (noting that regulations requiring cable operators to
carry broadcast signals posed little risk of misattribution because
broadcasters are required by federal regulation to identify
themselves at least once every hour); PruneYard Shopping
Center v. Robins, 447 U.S. 74, 87 (1984) (suggesting that there
was no risk that the message of students distributing political
pamphlets and conducting a petition drive at a shopping mall
would be attributed incorrectly to the mall owner and noting that
the mall owner could disavow any connection with the message
by posting signs near the petition table).
But in none of these cases did the Court hold that the risk
of misattribution and the speaker’s ability to disclaim the
50
there was virtually no risk that the compelled speech would be
attributed to anyone other than the state.
message were dispositive elements of the compelled speech
doctrine. In Hurley, the Court noted that it was not “deciding on
the precise significance of the likelihood of misattribution” and
did not rest its holding on the parade organizer’s presumed
difficulty in disclaiming the gay marchers’ message. 515 U.S.
at 517. And in both PruneYard and TBS the absence of a risk of
misattribution was only one of a number of factors
distinguishing them from prior cases in which compelled speech
had been found. PruneYard, 447 U.S. at 87; TBS, 512 U.S. at654–55. The Court also considered the content-neutral nature
of the law causing the challenged “compelled” speech, the
nonexistent risk of self-censorship, and the unique
characteristics of the forum (the Court later described the
shopping mall in PruneYard as a “peculiarly public” forum, see
Pacific Gas, 475 U.S. at 13 n.8; the TBS Court noted cable’s
monopoly status and exclusive control over the “essential
pathway” for disseminating a particular type of communication).
TBS, 512 U.S. at 654–56; PruneYard, 447 U.S. at 87–88. And
while PruneYard comes closest to holding that a speaker’s
ability to disclaim a message may be relevant to the compelled
speech analysis, it is notable that PruneYard predated Pacific
Gas, the most express rejection of the ability to disclaim as an
antidote for compelled speech. Pacific Gas, 475 U.S. at 15 n.11
(plurality opinion) (“The presence of a disclaimer . . . does not
suffice to eliminate the impermissible pressure on the appellant
to respond to [the unwanted] speech . . . .”).
51
In sum, law schools are expressly precluded from
disclaiming or retorting the military’s recruiting message by
the Solomon Amendment’s new requirement that their
treatment of military recruiters be “equal in quality and
scope” to the treatment of other recruiters. And while the
Court has mentioned the danger of misattribution and the
speaker’s ability to disclaim in several of its compelled speech
cases, it has not held to date that the presence of either factor
eliminated compelled speech concerns. Therefore, the
District Court was wrong to reject FAIR’s compelled speech
claims on the basis of its conclusion that the Solomon
Amendment’s requirements posed little risk of misattribution
to the law schools who in any event could effectively disclaim
the military’s message.
(e) The Solomon Amendment would not
likely survive strict scrutiny.
Although the Solomon Amendment impairs the law
schools’ First Amendment rights by compelling them to
propagate, accommodate, and subsidize the military’s
recruiting message against their will, the statute “could still be
valid if it were a narrowly tailored means of serving a
compelling state interest”—i.e., if it passed strict First
Amendment scrutiny. Pacific Gas, 475 U.S. at 19; see also
Riley, 487 U.S. at 798 (regulation impairing speakers’ First
Amendment rights under the compelled speech doctrine was
subject to “exacting First Amendment scrutiny” that it did not
52
survive). We thus inquire (1) whether the Government’s
interest in recruiting military lawyers is compelling, and (2)
whether the Solomon Amendment is narrowly tailored to
advance that goal. But as discussed above in the context of
FAIR’s expressive association claim, see supra Part
III.B.1(c), the Solomon Amendment does not survive strict
scrutiny because the Government has not demonstrated (or
even argued) that it cannot recruit effectively by less speech-
restrictive means. Therefore, the balance of interests likely
tips in the law schools’ favor.
* * * * *
To summarize, the Solomon Amendment conditions
funding on the law schools’ propagation, accommodation, and
subsidy of the military’s recruiting, which is expression. The
Government has not shown that the assistance from law
schools that the Solomon Amendment requires is narrowly
tailored to advance its interest in recruiting. FAIR has thus
established a reasonable likelihood of establishing that the
Solomon Amendment unconstitutionally conditions funding
on a basis that infringes law schools’ constitutionally
protected interests under the First Amendment doctrine of
compelled speech.
3. Consideration of O’Brien
We turn finally to an argument that is ancillary to our
53
holding. Although the Solomon Amendment fits within the
categories of First Amendment cases described in the
previous sections, the District Court placed it instead into a
mold it does not fit: the doctrine of expressive conduct. In so
doing, it applied the intermediate scrutiny test set out by the
Supreme Court in United States v. O’Brien, 391 U.S. 367(1968), discussed at length below, for review of governmental
regulations with only an incidental effect on expression. For
the sake of completeness, we close by considering whether
the law schools’ resistance to the military’s recruitment
policy, motivated by their ideological opposition to exclusion
based on sexual orientation, is expressive conduct protected
by the First Amendment. 24
(a) O’Brien is inapplicable when First
24
While the expressive content of the law schools’ message is
relevant also to the law schools’ expressive association claim
under Dale, the analysis is different in that context. Under the
rubric of expressive association, we consider whether the
Solomon Amendment interferes with the law schools’ extant
message of nondiscrimination, and thus impinges their
associational freedom, by compelling them to assist in the
military’s recruitment efforts. But with expressive conduct we
ask whether resistance to the statute, i.e., exclusion of the
recruiters in contravention of the statute (or its flip side, “the
conduct of law schools in permitting or assisting a recruiting
activity,” FAIR, 291 F. Supp. 2d at 309), is itself expressive
conduct warranting First Amendment protection.
54
Amendment activity is protected on other
grounds.
Before exploring the contours of the O’Brien test, we
explain briefly why expressive conduct fails as a descriptive
model of the First Amendment issues at stake in this case.
Activity simultaneously may give rise to an expressive
conduct claim and to claims based on alternative theories.
The premise of the category “expressive conduct” is that some
activity, though it is not speech proper and is not protected
under other First Amendment grounds, is crucial to public
debate and warrants protection. See Texas v. Johnson, 491
U.S. 397, 404 (1989) (explaining that the Court has “long
recognized that [the First Amendment’s] protection does not
end at the spoken or written word” and that conduct may be
“sufficiently imbued with elements of communication” to
merit First Amendment protection) (citations omitted).
Expressive conduct is, loosely stated, an overflow category; it
is broad.25 It is therefore unsurprising that much expression
25
As noted in Johnson, id., the Supreme Court has recognized
the expressive nature of students' wearing of black armbands to
protest the war in Vietnam, Tinker v. Des Moines Independent
Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in
by black citizens in a segregated area, Brown v. Louisiana, 383
U.S. 131, 141-142 (1966); of the wearing of American military
uniforms in a dramatic presentation criticizing American
involvement in Vietnam, Schacht v. United States, 398 U.S. 5855
that falls squarely within the doctrines discussed in the first
sections may also be cast as expressive conduct. In those
cases, application of the O’Brien test is inappropriate.
We need only look at the seminal expressive
association and compelled speech cases to see that this is so.
In Dale, for example, the Supreme Court expressly declined
to rely on O’Brien, explaining: “New Jersey’s public
accommodations law directly and immediately affects
associational rights, in this case associational rights that enjoy
First Amendment protection. Thus, O’Brien is inapplicable.”
530 U.S. at 659. Likewise in Wooley v. Maynard, the
Supreme Court elected not to consider O’Brien because it
considered compelled speech to be a “more appropriate First
Amendment ground[].” 430 U.S. at 713. In short, the Court
has not applied O’Brien where alternative First Amendment
grounds were available.
Taking our cue from the Supreme Court, because the
Solomon Amendment is subject to strict scrutiny under the
doctrines of expressive association and compelled speech, we
need not engage in an O’Brien analysis. Because O’Brien
scrutiny is intermediate rather than strict, demonstrating a
constitutional violation under a theory of expressive conduct
(1970); and of picketing in support of a wide variety of causes,
see, e.g., Food Employees v. Logan Valley Plaza, Inc., 391 U.S.
308, 313-314 (1968).
56
is significantly more burdensome than under the models we
have discussed. And the law schools need establish only one
constitutional infirmity to justify an injunction. See, e.g., Sys.
Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d
1131, 1144 (3d Cir. 1977).
(b) Even under O’Brien, the Solomon
Amendment is likely to impair expressive
conduct unconstitutionally.
Even if O’Brien applied, we would reverse the District
Court’s decision because we disagree with its application of
intermediate scrutiny. Notwithstanding that the District
Court’s opinion featured a consistent theme—that the
Solomon Amendment “targets conduct, not speech”—the
Court acknowledged a communicative or expressive element
in the law schools’ policies against offering the schools’
resources, support, or endorsement to any employer who does
not conform to their antidiscrimination policies. FAIR, 291
F. Supp. 2d at 311. Thus, to the extent we focus on the law
schools’ conduct, it is nonetheless expressive.
The First Amendment protects the right to engage in
expressive conduct. See, e.g., NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 907 (1982) (recognizing the right of
boycotters to “band[] together and collectively express[] their
dissatisfaction with a social structure that had denied them
rights to equal treatment and respect”); Spence v. Washington,
57
418 U.S. 405, 411 (1974) (acknowledging First Amendment
protection for conduct that “convey[s] a particularized
message” that is understood as expression in the context of
surrounding circumstances). A government regulation
impairing expressive conduct is only justified “[1] if it is
within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3]
if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to
the furtherance of that interest.” O’Brien, 391 U.S. at 377.
We take no issue with the District Court’s conclusion
that the Solomon Amendment is within the constitutional
power of the Government, as the Constitution authorizes
Congress to raise and support a military. FAIR, 291 F. Supp.
2d at 312 (citing U.S. Const. art. 1 § 8). We assume arguendo
that the District Court was correct in determining that the
Solomon Amendment is unrelated to the suppression of ideas.
Id. at 314. And we of course presume that the United States
has a vital interest in having a system for acquiring talented
military lawyers. But as we noted above, the Government
has chosen to submit no evidence that would support the
necessity of requiring law schools to provide the military with
a forum for, and assistance in, recruiting. Instead, the
Government argues that “the impact of the wholesale
exclusion of military recruiters [from law school campuses] is
self-evident, and the government is not obligated” during
58
preliminary injunction proceedings “to assemble and present a
factual record that merely confirms the dictates of common
sense.” The Government fails to offer even an affidavit
indicating that enforcement of the Solomon Amendment has
enhanced military recruiting efforts. It suggests simply that
the scope of the remedy sought by the plaintiffs relieves the
Government of its obligation, pursuant to the First
Amendment, to justify its curtailment of expression. How this
is so we cannot conjure. We are unaware of any case so
holding.26 And while the Government emphasizes that the
Nation’s military is at stake, invoking the importance of a
well-trained military is not a substitute for demonstrating that
there is an important governmental interest in opening the law
schools to military recruiting. See Rostker v. Goldberg, 453
U.S. 57, 89 (1981) (“‘[T]he phrase “war power” cannot be
invoked as a talismanic incantation to . . . remove
constitutional limitations safeguarding essential liberties.’”
(quoting United States v. Robel, 389 U.S. 258, 263-64
26
The Government quotes Nixon v. Shrink Missouri Gov’t
PAC, 528 U.S. 377, 378 (2000), for the proposition that “[t]he
quantum of empirical evidence needed to satisfy heightened
judicial scrutiny of legislative judgments will vary up or down
with the novelty and plausibility of the justification raised.” But
this is not a case where the Government has presented less
evidence than might otherwise be required; here the
Government has presented no evidence.
59
(1967))). 27
It may be the case, as the Government argues, that on-
campus recruitment is an employer’s principal tool for
attracting talented students. But it does not thereby follow
that recruiting by means of the Solomon Amendment is
effective. On the contrary, it seems to us equally plausible
that the Solomon Amendment has in fact hampered
recruitment by subjecting the military’s exclusionary policy to
public scrutiny. The record is replete with references to
student protests and public condemnation. In this context, it
is hardly “common sense,” as the military alleges, that its
presence on campus amidst such commotion and opposition
has aided its recruitment efforts.
In closing, we emphasize again that we need not enter
the thicket of O’Brien analysis in this case. We rely on the
doctrines of expressive association and compelled speech to
conclude that FAIR has made the requisite showing of a
likelihood of success on the merits in support of its motion for
27
We note that this is not a case involving military discretion
to determine whether internal policies are necessary and
appropriate. Cf. Parker v. Levy, 417 U.S. 733, 743 (1974)
(“[T]he military is, by necessity, a specialized society separate
from civilian society” (citation omitted)). On the contrary, this
case involves the military’s compelled presence on the campuses
of civilian institutions.
60
a preliminary injunction. And even under the intermediate
scrutiny test of O’Brien the Solomon Amendment falters thus
far, for the Government has chosen not to produce any
evidence that it is no more than necessary to further the
Government’s interest. Perhaps this explains why the DOD
initially objected to the Amendment as “unnecessary” and
“duplicative.” 140 Cong. Rec. H3864 (daily ed. May 23,
1994).
C. Other preliminary injunction factors
By establishing a likelihood of success on the merits of
its unconstitutional condition claim based on a First
Amendment violation, FAIR has necessarily satisfied the
second element: irreparable harm. Elrod v. Burns, 427 U.S.
347, 373 (1976) (“The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury.”); see also Beal v. Stern, 184 F.3d 117, 123
(2d Cir. 1999) (“[T]he irreparable injury issue and the
likelihood of success issue overlap almost entirely” in the
First Amendment context). On the third element, we
conclude that the balance of interest tips in FAIR’s favor.
Without an injunction, the law schools’ First Amendment
rights under the expressive association doctrine and the
compelled speech doctrine will be impaired during on-campus
recruiting seasons. The Government, on the other hand, does
not lose the opportunity, in a proceeding on the merits, to
“shoulder its full constitutional burden of proof” of showing
61
that a less restrictive alternative would not be as effective.
Ashcroft v. ACLU, 124 S. Ct. 2783, 2794 (2004). As for the
final element, we believe the public is best served by
enjoining a statute that unconstitutionally impairs First
Amendment rights.
IV. Conclusion
The Solomon Amendment requires law schools to
express a message that is incompatible with their educational
objectives, and no compelling governmental interest has been
shown to deny this freedom. While no doubt military lawyers
are critical to the efficient operation of the armed forces, mere
incantation of the need for legal talent cannot override a clear
First Amendment impairment. Even were the test less
rigorous than a compelling governmental riposte to the
schools’ rights under the First Amendment, failure
nonetheless is foreordained at this stage, for the military fails
to provide any evidence that its restrictions on speech are no
more than required to further its interest in attracting good
legal counsel.
In this context, the Solomon Amendment cannot
condition federal funding on law schools’ compliance with it.
FAIR has a reasonable likelihood of success on the merits and
satisfies the other injunctive elements as well. We reverse
and remand for the District Court to enter a preliminary
injunction against enforcement of the Solomon Amendment.
62
FAIR et al. v. Rumsfeld et al., No. 03-4433
ALDISERT, Circuit Judge, Dissenting.
I would affirm the judgment of the district court.
Although I have myriad problems with the fundamental
contentions presented by the Appellants and the host of
supporting amicus curiae briefs, essentially my disagreement
is with the all-pervasive approach that this is a case of First
Amendment protection in the nude. It is not.
Rather, the issues before us are threefold. First, we
must inquire whether Appellants have met the high burden of
overcoming the presumption of constitutionality of a
congressional statute that is not only bottomed on the
Spending Clause, but on a number of other specific provisions
in the Constitution that deal with Congress’ obligation to
support the military. This is especially relevant because, in the
entire history of the United States, no court heretofore has
ever declared unconstitutional on First Amendment grounds
any congressional statute specifically designed to support the
military.
Second, we must determine, using canons of logic,
63
whether a permissible factual inference—let alone a
compellable one—may be properly drawn that the law
schools’ anti-discrimination policies are violated from the
sole evidentiary datum that a military recruiter appears on
campus for a short time.
Third, only if a proper inference may be drawn do we
meet First Amendment considerations. The First Amendment
is implicated if and only if, after applying the “balance-of-
interests” test originally articulated by Justice Brennan in
Roberts v. United States Jaycees, 468 U.S. 609 (1984), it can
be concluded that the operation of the First Amendment
trumps the several clauses of Articles I and II relating to the
spending power and support of the military.
Upon analysis, the argument of the Appellants and
many of the amici curiae, including but not limited to the
Association of American Law Schools, is rather complex. Its
point of beginning takes the following tripartite form: (1)
most, but not all, accredited American law schools have
adopted policies that indicate they will not discriminate based
on age, race, color, national origin, disability, religion, gender
or sexual orientation; (2) the law schools have committed
themselves to “admit students, grant scholarships, grade
exams, recruit and promote faculty, and hire staff in light of
these principles” (J.A. at 509); (3) in conjunction with their
own commitment not to discriminate, the law schools have
adopted policies stating that they will not assist employers
64
who discriminate.
Their intermediate statement is that the United States
military excludes service members based on evidence of
homosexual conduct or orientation. See 10 U.S.C. § 654(2004). From this, the law schools conclude that permitting
the military to recruit on campus for military lawyers and
military judges creates a compellable inference that the law
schools are violating their own policies prohibiting
discrimination on the basis of sexual orientation.
They then move to the Solomon Amendment which
provides that certain federal grants will not be made to “an
institution of higher education ... if the Secretary of Defense
determines that that institution ... has a policy or practice ..
that either prohibits, or in effect prevents – (1) the Secretary
of a military department or [the Department of Homeland
Security] from gaining entry to campuses, or access to
students (who are 17 years of age or older) on campuses, for
purposes of military recruiting . . .” 28 10 U.S.C. § 983.
28
Congress has clarified that the funding restriction does not
apply to the following: (1) federal grants of funds “to be
available solely for student financial assistance or related
administrative costs,” Pub. L. No. 106-79, § 8120, 113 Stat.
1260 (Oct. 25, 1999); (2) an institution that ceased its prior
policy or practice of prohibiting or effectively preventing entry
to campus or access to students on campus for military
65
This year, Congress amended the Solomon
Amendment to require military recruiting access “in a manner
that is at least equal in quality and scope to the [degree of]
access to campuses and to students that is provided to any
other employer.” National Defense Authorization Bill for
Fiscal Year 2005, Pub. L. No. 108-287 (2004).
From the foregoing premises Appellants’ Second
Amended Complaint alleges that the Solomon Amendment
and regulations promulgated thereunder violate the First
Amendment as applied to law schools by: (1) imposing
unconstitutional conditions on the receipt of federal funding;
(2) effecting viewpoint discrimination; (3) forcing the
plaintiffs to endorse messages repugnant to them and
suppressing their expression of dissent; and (4) imposing
vague and overbroad restrictions on speech.
I would hold that Congress’ use of the spending power
and fulfillment of the requirements to maintain the military
under Articles I and II do not unreasonably burden speech
and, therefore, do not offend the First Amendment. I apply the
balance-of-interests test and decide that the interest of
protecting the national security of the United States outweighs
recruiting, 10 U.S.C. § 983(c)(1); and (3) an institution that “has
a longstanding policy of pacifism based on historical religious
affiliation,” 10 U.S.C. § 983(c)(2).
66
the indirect and attenuated interest in the law schools’ speech,
expressive association and academic freedom rights. The
Solomon Amendment survives the constitutional attack
because its provisions, the 2004 amendments thereto and
related regulations, govern conduct while only incidentally
affecting speech. In serving its compelling interest in
recruiting military lawyers, the statute does not require the
government to engage in unconstitutional conduct.
Accordingly, with respect, I dissent. I agree with the
thoughtful statement of reasons of the district court and would
affirm its judgment.
I.
The starting point for analysis must be fealty to the
precept that congressional statutes are presumed to be
constitutional. See, e.g., Edward J. DeBartolo Corp. v. Florida
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) (“‘[t]he elementary rule is that every reasonable
construction must be resorted to, in order to save a statute
from unconstitutionality.’”) (quoting Hooper v. California,
155 U.S. 648, 657 (1895)); NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490, 500 (1979) ( “[A]n act of Congress
ought not be construed to violate the Constitution if any other
possible construction remains available.”). Thus in Rust v.
Sullivan, 500 U.S. 173 (1991), the Court teaches:
The principle enunciated in Hooper v. California, supra67
and subsequent cases, is a categorical one: As between
two possible interpretations of a statute, by one of
which it would be unconstitutional and by the other
valid, our plain duty is to adopt that which would save
the Act. Blodgett v. Holden, 275 U.S. 142, 148 (1927)
(opinion of Holmes, J.). This principle is based at least
in part on the fact that a decision to declare an Act of
Congress unconstitutional “is the gravest and most
delicate duty that this Court is called on to perform.”
Ibid. Following Hooper, supra, cases such as United
States ex rel. Attorney General v. Delaware & Hudson
Co., 213 U.S. 366, 408 (1909), and United States v. Jin
Fuey and Moy, 241 U.S. 394, 401 (1916), developed
the corollary doctrine that “[a] statute must be
construed, if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional but also grave
doubts upon that score.” This canon is followed out of
respect for Congress, which we assume legislates in
the light of constitutional limitations. FTC v. American
Tobacco Co., 260 U.S. 298, 305-307 (1924). It is
qualified by the proposition that “avoidance of a
difficulty will not be pressed to the point of
disingenuous evasion.” George Moore Ice Cream Co.
v. Rose, 298 U.S. 373, 379 (1933).
Id. at 190-191.
68
It is noted that although the Supreme Court considers
this principle “a categorical one,” it is not included in the
majority’s analysis.
II.
A second disagreement with the approach of my
distinguished brothers of the majority is that they have not
identified by name or discussed the several important
provisions of the Constitution that provide for the support of
the military and that antedate the promulgation of the
amendments contained in the Bill of Rights.
Among the powers granted to Congress is the
spending power: “The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of
the United States. . .” U.S. Const. art. I, § 8, cl. 1.
Furthermore, Congress is specifically given several powers
related to the military: (1) “[t]o declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures
on Land and Water,” id. cl. 11; (2) “[t]o raise and support
Armies, but no appropriation of Money to that Use shall be
for a longer Term than two Years,” id. cl. 12; (3) “[t]o provide
and maintain a Navy,” id. cl. 13; and (4) “[t]o make Rules for
the Government and Regulation of the land and naval
Forces,” id. cl. 14.
69
The Constitution also authorizes Congress “[t]o make
all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States,
or in any Department or Officer thereof.” Id. cl. 18.
The Constitution further states: “[t]he President shall
be Commander in Chief of the Army and Navy of the United
States. . . .” Const. art. II, § 2, cl. 1. The President also “shall
take Care that the Laws be faithfully executed . . .” Id. § 3, cl.
1.
Indeed, the only oblique reference to these
countervailing provisions of the Constitution appears in the
majority’s discussion of the unconstitutional conditions
doctrine, citing Rosenberger v. Rector & Visitors of Univ. of
Va., 515 U.S. 819 (1995) (public university could not
condition funds for student publications on their secular
perspective); FCC v. League of Women Voters, 468 U.S. 364(1984) (FCC could not condition federal funds to radio
stations on editorial content); and Perry v. Sindermann, 408
U.S. 593, 597 (1972) (relating to non-renewal of a contract
and citing cases relating to denials of tax exemptions and
welfare payments, but emphasizing that “most often, we have
applied the principle to denials of public employment”).
Significantly, my research has not discovered any
reported case where an act of Congress exclusively predicated
70
on supporting the military has been declared unconstitutional
by application of the seminal doctrine that “[the government]
may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests–especially, his interest in
freedom of speech.” Speiser v. Randall, 357 U.S. 513, 526-
529 (1958); see also Perry, 408 U.S. at 597. By reversing the
district court’s judgment, the majority has created new law,
totally unsupported by binding precedent. In doing so the
majority selects analogues to cases where state public
accommodation statutes were involved and not a single case
where an act of Congress was not only authorized by various
Clauses in Articles I and II, but commanded by them.
In the posture of this case, Appellants do not urge that
the Solomon Amendment is facially unconstitutional, but only
that it is unconstitutional as applied to the law schools
because it offends their stated policies of anti-discrimination.
To succeed in their burden of overcoming the presumption of
constitutionality of the Solomon Amendment, they must first
demonstrate that the mere presence of recruiting officers on
campus constitutes a compellable inference that the law
schools will be objectively and reasonably viewed as violating
their anti-discrimination policies. If they succeed at that stage,
then they must demonstrate that the bite of the First
Amendment under the facts of this case is so strong as to
outweigh Congress’ interests to “provide for the common
Defense . . .,” U.S. Const. art. I, § 8, cl. 1.; “declare War,
grant Letters of Marque and Reprisal, and make Rules
71
concerning Captures on Land and Water,” id. cl. 11; “raise
and support Armies, id. cl. 12; “provide and maintain a
Navy,” id. cl. 13; “make Rules for the Government and
Regulation of the land and naval Forces,” id. cl. 14; and for
the President to “be Commander in Chief of the Army and
Navy of the United States. . . .,” U.S. Const. art. II, § 2, cl. 1;
and to “take Care that the Laws be faithfully executed . . .,”
id. § 3, cl. 1.
Before proceeding into this analysis, it bears note that
the military’s policy against homosexual activity, codified at
10 U.S.C. § 654, previously has been adjudged by a number
of our sister courts of appeals not to violate the Constitution.
See, e.g., Richenberg v. Perry, 97 F.3d 256, 261 (8th Cir.
1996) (“We join six other circuits in concluding that the
military may exclude those who engage in homosexual acts as
defined in [10 U.S.C.] § 654(f)(3)(A).”).
Moreover, in United States v. City of Phil., 798 F.2d
81 (3d Cir. 1986) this court has discussed the very subject of
this appeal. In that case, the Temple School of Law’s
placement office invited the Judge Advocate General Corps
of the Army, Navy and Marine Corps to participate in a job
recruiting program on its campus. he Philadelphia
Commission on Human Relations issued an order restraining
the law school from doing so on the ground that the military
services did not accept homosexuals. We affirmed a district
court order prohibiting the Commission from taking any
72
adverse action. After reviewing Congressional legislation
implementing what we described as “the long standing
Congressional policy of encouraging colleges and universities
to cooperate with, and open their campuses to, military
recruiters,” we stated:
We believe that only one reasonable conclusion can be drawn
from this legislation: Congress considers access to college and
university employment facilities by military recruiters to be a
matter of paramount importance. In other words, we think that
Congress views such access an integral part of the military’s
effort to conduct “intensive recruiting campaigns to obtain
enlistments.” This conclusion is buttressed by the legislative
history of these provisions. For example, a committee report
accompanying the DDA Act of 1973 states, in pertinent part,
that “the Committee believes that [the] national interest is best
served by colleges and universities which provide for the full
spectrum of opportunity for various career fields, including
the military field through the Reserve Officers Training Corps
program, and by the opportunity for students to talk to all
recruiting sources, including military recruiters.” H.R.Rep No.
92-1149, 92d Cong., 2d Sess. 79 (1972). . . .
We conclude, therefore, that the Order conflicts with a
clearly discernible Congressional policy concerning military
recruitment on the campuses of this nation’s colleges and
universities.
73
Id. at 86, 88. We do not write on a clean slate regarding the
importance Congress places in access to college and
university facilities by the military. We already have decided
that issue contrary to the argument pressed by the Appellants.
And we made this determination almost twenty years ago.
III.
Before we address the application of First Amendment
precepts, I am unwilling to accept that there is a permissible
inference, let alone a compellable one, that a military presence
on campus to recruit, in and of itself, conjures up an
immediate impression of a discriminatory institution.
Throughout our history, especially in times of war, like the
present conflicts in Afghanistan and Iraq, and the military
campaign against the Al Qaeda, a completely different
impression is evoked. The men and women in uniform are
almost universally considered as heroes, sacrificing not only
their lives and well-being, but living separate from all the
comforts of stateside living. Again in the current era, almost
every day, a candidate for President emphasized his four
months as a swift boat commander in the Vietnam conflict.
As masters of public opinion, the political apparatus on both
sides of the aisle certainly would not put a premium on
military service if the inference of the discrimination
advanced by Appellants here was attached thereto. Indeed, the
respect to the man and woman in uniform is so profound that
in the same Presidential campaign, the other candidate was
74
criticized for serving at home in a National Guard unit during
the Vietnam conflict instead of going overseas.
This view of service in the armed forces is at the
farthest polar extreme from the Appellants’ position that the
mere presence of military recruiters conjures up the image of
an institution that discriminates. That the military does so in
fact, does not, in and of itself, generate the direct and
universal feeling of loathing and abomination to the extent
that their presence on campus a few days a year deprives law
school institutions of rights inferred from the First
Amendment.
What is involved here in the first instance is not
operation of legal principles but precepts of logic that
determine what can be properly inferred from stated
circumstances. An inference is a process in which one
proposition (a factual conclusion) is arrived at and affirmed
on the basis of one or more other propositions, which were
accepted as the starting point of the process. Professor
Stebbing observes that an inference “may be defined as a
mental process in which a thinker passes from the
apprehension of something given, the datum, to something,
the conclusion, related in a certain way to the datum, and
accepted only because the datum has been accepted.” L.S.
Stebbing, A M odern Introduction to Logic 211-212 (1948).
Inference is a process where the thinker passes from
75
one proposition to another that is connected with the former in
some way. But for the passage to be valid, it must be made
according to the laws of logic that permit a reasonable
movement from one proposition to another. Inference, then is
“any passing from knowledge to new knowledge.” Joseph
Gerard Brennan, A Handbook of Logic 1 (1957). The passage
cannot be mere speculation, intuition or guessing. The key to
a logical inference is the reasonable probability that the
conclusion flows from the evidentiary datum because of past
experiences in human affairs. A moment is necessary to
discuss the difference between inference and implication.
These terms are obverse sides of the same coin. We infer a
conclusion from the data; the data imply a conclusion.
Professor Cooley explains:
[w]hen a series of statements is an instance of a valid
form of inference, the conclusion will be said to follow from
the premises, and the premises to imply the conclusion. If a
set of premises implies a conclusion, then, whenever the
premises are accepted as true, the conclusion must be
accepted as true also . . . .
John C. Cooley, A Primer of Formal Logic 13 (1942).
As Professor Brennan put it: “In ordinary discourse,
[implication] may mean ‘to give a hint,’ and [inference], ‘to
take a hint.’” Brennan, A Handbook of Logic at 2-3. Drawing
a proper inference is critical in this case, and this court has
76
heretofore suggested some broad guidelines:
The line between a reasonable inference that
may permissibly be drawn by a jury from basic
facts in evidence and an impermissible
speculation is not drawn by judicial
idiosyncracies. The line is drawn by the laws of
logic. If there is an experience of logical
probability that an ultimate fact will follow a
stated narrative or historical fact, then the jury is
given the opportunity to draw a conclusion
because there is a reasonable probability that the
conclusion flows from the proven facts. As the
Supreme Court has stated, “The essential
requirement is that mere speculation be not
allowed to do duty for probative facts after
making due allowance for all reasonably
possible inferences favoring the party whose
case is attacked.”
Tose v. First. Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir.
1981) (quoting Galloway v. United States, 319 U.S. 372, 395
(1943)).
From these basic precepts of logic we cannot conclude
that the mere presence of a uniformed military recruiter
77
permits or compels the inference that a law school’s anti-
discrimination policy is violated. It bears repetition that the
passage from datum to conclusion cannot be mere
speculation, intuition, or guessing, or by “judicial
idiosyncracies.” The subjective idiosyncratic impressions of
some law students, some professors, or some anti-war
protesters are not the test. What we know as men and women
we cannot forget as judges. And this we know from
elementary canons of logical processes—the validity vel non
of a logical inference is the reasonable probability that the
conclusion flows from the evidentiary datum because of past
experiences in human affairs.
A participant in a military operation cannot be ipso
facto denigrated as a member of a discriminatory institution.
And conjuring up such an image is the cornerstone of
Appellant’s First Amendment argument.
In my view it is not necessary to meet any First
Amendment argument because given the evidentiary datum of
a military recruiter on campus for a few days, a proper
inference may not be drawn that this, in and of itself, supports
a factual inference that the law school is violating its anti-
discrimination policy. I think that this alone is sufficient to
affirm the judgment of the district court.
Nevertheless, I go further and assume that Appellants’
suggested inference may properly be drawn as a fact, and now
78
turn to a discussion of whether First Amendment concerns
trump the demands placed on Congress and the President
under Articles I and II to support the military.
IV.
Our beginning point in approaching a First
Amendment analysis is the balancing-of-interests test set forth
in Justice Brennan’s important opinion in Roberts:
Determining the limits of state authorities over
an individual’s freedom to enter into a particular
association therefore unavoidably entails a
careful assessment of where that relationship’s
objective characteristics locate it on a spectrum
from the most intimate to the most attenuated of
personal attachments. . . . We need not mark the
potentially significant points on this terrain with
any precision.
468 U.S. at 620 (emphasis added). Moreover, important for
our immediate purposes is the recognition that “[t]he right to
associate for expressive purposes is not, however, absolute.
Infringements on that right may be justified by regulations
adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means
79
significantly less restrictive of associational freedoms.” Id. at
623.
Although dealing with distinctions between abortions
and other procedures, Justice Blackmun emphasized that in
constitutional matters we do not deal with absolutes. “The
constitutionality of such distinction will depend on its degree
and the justification for it.” Bellotti v. Baird, 428 U.S. 132,
149-150 (1976). For other cases discussing the necessity to
weigh or balance conflicting interests, see also New York
State Club Ass’n. Inc. v. City of New York, 487 U.S. 1(1988); Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S.
537 (1987); Dun & Bradstreet, Inc. v. Greenmoss Builders
Inc, 472 U.S. 749, 758 (1985) (“We have long recognized that
not all speech is of equal First Amendment importance.”);
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978); Maher
v. Roe, 432 U.S. 464, 473 (1977); Whalen v. Roe, 429 U.S.
589, 599, 600 and nn.24 and 26 (1977); Zacchini v. Scripps-
Howard Broad. Co., 433 U.S. 562 (1977) (emphasizing that a
line has to be drawn between media reports that are protected
and those that are not).
A.
I now turn to identify and then weigh competing
interests involved in this case. I have written elsewhere that
“[a]n interest is a social fact, factor or phenomenon reflected
by a claim or demand or desire which human beings, either
80
individually or as groups or associations or relations, seek to
satisfy and which has been recognized as socially valid by
authoritative decision makers in society.” Ruggero J. Aldisert,
The Judicial Process: Text, Materials and Cases 489 (2d ed.
1996) (citing authorities). Two important interests conflict
here. Using the formulation of Dean Roscoe Pound, they are:
(1) “an interest in general safety, long recognized in the legal
order in the maxim that the safety of the people is the highest
law;” and (2) the social interest in political progress and
individual mental self-assertion, taking form in “the [p]olicy
in favor of free speech and free belief and opinion[.]” Roscoe
Pound, “A Survey of Social Interests,” 57 Harv. L. Rev. 1, 17,
34 (1943).
The interest in public safety is expressed in the clauses
of Articles I and II of the Constitution relating to support of
the military; the interest in free speech is found in the First
Amendment.
I now proceed to weigh these interests.
B.
What is perceived to be the flash point of controversy
here is whether the general interest in public safety has been
trumped by the interests embodied in the First Amendment.
Supporting the government’s position are the line of cases
emphasizing the Supreme Court’s deference to Congress’
81
support of the military. Arrayed against this is Appellant’s
insistence that the national defense interest is trumped by the
teachings of Boy Scouts of Amer. v. Dale, 530 U.S. 640(2000), and Hurley v. Irish-American Gay, Lesbian &
Bisexual Group of Boston, 515 U.S. 557 (1995).
The Court has consistently deferred to congressional
decisions relating to the military. “The case arises in the
context of Congress’s authority over national defense and
military affairs, and perhaps in no other area has the
[Supreme] Court accorded Congress greater deference.”
Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981); see also
Weiss v. United States, 510 U.S. 163, 177 (1994) (“Judicial
deference . . . ‘is at its apogee’ when reviewing congressional
decision making...” in the realm of military affairs). As the
Supreme Court has explained, “[n]ot only is the scope of
Congress’ constitutional power in this area broad, but the lack
of competence on the part of the courts is marked.” Rostker,
453 U.S. at 65; see also Gilligan v. Morgan, 413 U.S. 1, 10
(1973) (stating “it is difficult to conceive of an area of
governmental activity in which the courts have less
competence...”).
For example, in Goldman v. Weinberger, 475 U.S. 503(1986), the Court rejected a Free Exercise challenge to a
military dress regulation notwithstanding the plaintiff’s claim
that the military’s assessment of the need for the regulation
“is mere ipse dixit, with no support from actual experience or
82
a scientific study in the record, and is contradicted by expert
testimony . . .” Id. at 509. As the Court explained, “whether or
not expert witnesses may feel that religious exceptions . . . are
desirable is quite beside the point[;] [t]he desirability of dress
regulations in the military is decided by the appropriate
military officials, and they are under no constitutional
mandate to abandon their considered professional judgment.”
Id.Appellants suggest that even if the military requires
physical access to campuses, there is no need for military
recruiters to be given the same degree of access provided to
other employers. It must be emphasized that even bare
physical access is more than the Appellants are willing to
tolerate; they are asserting a constitutional right to exclude the
military from campuses altogether. Second, it is hardly
credible for the Appellants to suggest that physical access
alone is sufficient for effective military recruiting, particularly
when other employers are being granted far more extensive
and meaningful access. It is fair to assume that all of the
facilities and services provided to prospective employers by
law schools are intended to facilitate the hiring process. If
military recruiters are denied the ability to reach students on
the same terms as other employers, damage to military
recruiting is not simply probable but inevitable. The Solomon
Amendment reflects Congress’ judgment about the
requirements of military recruiting, and “[t]he validity of such
regulations does not turn on a judge’s agreement with the
83
responsible decision maker concerning the most appropriate
method for promoting significant government interests.”
United States v. Albertini, 472 U.S. 675, 689 (1985).
What disturbs me personally and as a judge is that the
law schools seem to approach this question as an academic
exercise, a question on a constitutional law examination or a
moot court topic, with no thought of the effect of their action
on the supply of military lawyers and military judges in the
operation of the Uniform Code of Military Justice. They make
it perfectly clear that they are not opposed to military
institutions as such; they only want to curtail recruitment of
military lawyers and judges. It is important for private
employers to appear on campus to recruit law school
graduates for positions with law school-sponsored “On
Campus Recruiting Days” or “On Campus Interviewing”
replete with interviews, followed by dinners and parties, but
somehow the military will recruit its lawyers without
appearing on campus. Somehow, Appellants urge, better law
graduates will be attracted to the military legal branches with
its lower pay and fewer benefits by some other recruiting
method, for example, from the ranks of undergraduate ROTC
programs. 29 Much of Appellants’ brief takes the form of
29
The following colloquy took place at the oral argument:
THE COURT: What else could the government do as a less
restrictive alternative?
84
conclusory statements that the military is able to attract top of
the line or high quality students without stepping foot on
campus. There is no explanation, however, why the law
schools consider it important to have private national law
firms come to campus and boast about first year associates’
salaries and signing bonuses and emphasize that if the
students want to clerk for a federal judge for a year, the firm
will add another bonus. This is not only OK for the private
sector, but also it’s good for the law school. But we don’t
want military recruiters to pollute our students. No, say the
law schools, what’s sauce for the private sector goose is not
sauce for the military gander. No, say the law schools, we
don’t need a level playing field; let the military shift for
themselves.
In its demand for total exclusion of military recruiters
from their campuses, “fair play” is not a phrase in the law
schools’ lexicon. They obviously do not desire that our men
and women in the armed services, all members of a closed
society, obtain optimum justice in military courts with the
best-trained lawyers and judges. It scarcely can be an
exaggeration to suggest that in many respects the need for
MR. ROSENKRANTZ: [A]ny number of things. Number one,
ROTC, the single most effective recruiting device the military
has, by their own admission.
(Tr. at 25.)
85
specially competent lawyers and exceptionally qualified
judges may be more important in a settled environment
dominated by the strictures of discipline than in the open
society of civilian life.
V.
I turn now to Appellants’ compelled speech argument.
They argue that the Solomon Amendment trenches on their
freedom of speech by compelling them to convey a message
other than their own. In making this argument, the Appellants
place principal reliance on the teachings of Hurley v. Irish-
American Gay, Lesbian & Bisexual Group of Boston. The
district court recognized, however, that nothing in Hurley
suggests that the Solomon Amendment crosses the line into
unconstitutionality. I agree completely and accept the
government’s analysis of this issue.
A.
In Hurley, the Court held that a state public
accommodation law could not constitutionally be applied to
compel organizers of a St. Patrick’s Day parade to allow a
group of gay, lesbian, and bisexual individuals to march in the
parade for the purpose of conveying a public message about
homosexual pride and solidarity. 515 U.S. at 572-581. The
organizers did not object to the participation of the group’s
members in the parade; the only question was whether the
86
group could participate in the parade “as its own parade unit
carrying its own banner.” Id. at 572. The Court concluded that
the law’s “apparent object is simply to require speakers to
modify the content of their expression to whatever extent
beneficiaries of the law choose to alter it with messages of
their own,” and that in so doing, the law “violates the
fundamental rule of protection under the First Amendment[]
that a speaker has the autonomy to choose the content of his
own message.” Id. at 573, 578.
Hurley involved an effort by the government to dictate
the content of a quintessential form of expressive activity—a
public parade. The Court emphasized that parades “are . . . a
form of expression, not just motion,” and “the inherent
expressiveness of marching to make a point,” id. at 568,
formed the predicate for its opinion. In contrast, there is
nothing remotely so expressive about the activity of
recruiting. The military engages in recruiting on college
campuses for precisely the same reason as do other
employers: to hire employees. Recruiting is undertaken solely
for instrumental reasons, not expressive ones.
To be sure, recruiting involves speaking, but the
recruiter speaks purely as part of an economic transaction, and
the expression is entirely subordinate to the transaction itself.
It bears no resemblance to the activities of the would-be
marchers in Hurley, who formed their group “for the very
purpose of marching” in the parade, and who sought to march
87
“as a way to express pride in their Irish heritage as openly
gay, lesbian, and bisexual individuals, to demonstrate that
there are such men and women among those so descended,
and to express their solidarity with like individuals who
sought to march in New York’s St. Patrick’s Day parade.” Id.
at 560, 570. In Hurley, unlike here, expression was not a
subsidiary part of an instrumental activity; expression was the
activity.
The role of the parade organizers in Hurley consisted
of choosing the messages that would comprise the parade, and
the vice of the challenged statute was that the homosexual
group’s protest message would be attributed to the organizers
themselves. The Court reasoned that the group’s participation
in the parade “would likely be perceived as having resulted
from the Council’s customary determination about a unit
admitted to the parade, that its message was worthy of
presentation and quite possibly of support as well.” Id. at 575.
Here, in contrast, the likelihood that members of a law
school community will perceive a military recruiter’s on-
campus activities as reflecting the school’s “customary
determination” that the recruiter’s message is “worthy of
presentation and quite possibly of support” is vanishingly
small. Unlike bystanders watching a passing parade, law
school students, and to be sure, their professors, are an
extraordinarily sophisticated and well-informed group, who
understand perfectly well that their schools admit military
88
recruiters not because they endorse any “message” that may
be conveyed by the recruiters’ brief and transitory appearance
on campus, but because the economic consequences of the
Solomon Amendment have induced them to do so. The
likelihood that the military’s recruiting will be seen as part of
a law school’s own message is particularly small when
schools can take— and have taken— ameliorative steps to
publicize their continuing disagreement with the military’s
policies and the reasons for their acquiescence in military
recruiting.
There is nothing to prevent the law school
communities from making speeches discouraging military
recruiting, posting signs and erecting huge billboards on
campus or public approaches announcing their opposition and
stating their reasons. That this is an important consideration
has been emphasized by the Supreme Court in PruneYard
Shopping Ctr. v. Robbins, 447 U.S. 74 (1980):
[f]inally, as far as appears here appellants can
expressly disavow any connection with the
message by simply posting signs in the area
where the speakers or handbillers stand. Such
signs, for example, could disclaim any
sponsorship of the message and could explain
that the persons are communicating their own
messages by virtue of state law.
89
Id. at 87.
Clearly, the interests expressed in Hurley lack the
power to dilute the judiciary’s traditional deference to
Congress in the interest of national defense.
In addition to arguing that the Solomon Amendment
trenches on freedom of speech simpliciter, the Appellants also
contend that the statute infringes on the law schools’ interests
in expressive association. Although the First Amendment
provides a measure of protection to expressive association,
“the Supreme Court has required a close relationship between
the [government] action and the affected expressive activity to
find a constitutional violation.” Pi Lambda Phi Fraternity, Inc.
v. Univ. of Pittsburgh, 229 F.3d 435, 438 (3d Cir. 2000). In
the case at bar, the impact of the Solomon Amendment on the
law schools’ interests in expressive association is far too
remote to violate the First Amendment. In applying the
balancing-of-interests test of Roberts, I am persuaded that the
law schools’ interests here fall at the remote extreme of
Justice Brennan’s spectrum – “where that relationship’s
objective characteristics locate it . . . [near] the most
attenuated of personal attachments.” 468 U.S. at 620. It is
important to say again that “[t]he right to associate for
expressive purposes is not, however, absolute.” Id. at 623.
First Amendment claims based on expressive
association are subject to a three-step constitutional inquiry.
90
See Pi Lambda Phi, 229 F.3d at 442. The first question is
“whether the group making the claim [is] engaged in
expressive association.” Id. If so, the next question is whether
the government action at issue “significantly affect[s] the
group’s ability to advocate its viewpoints.” Id. If it does, the
final question is whether the governmental interests served by
the law outweigh the burden imposed on the group's
associational interests. Id.; see also The Circle School v.
Pappert, 381 F.3d 172, 178 (3d Cir. 2004). In the case at bar
the district court found as a threshold matter that law schools
are engaged in expressive association, but went on to
determine that the Solomon Amendment does not place a
significant burden on their associational interests and that, in
any event, the governmental interests served by the Solomon
Amendment outweigh whatever associational burden the law
may impose. (J.A. at 54-75.)
C.
The majority invokes cases like Glickman v. Wileman
Bros. & Elliott, Inc., 521 U.S. 457, 469-470 (1997), United
States v. United Foods. Inc., 533 U.S. 405 (2001), and
Cochran v. Veneman, 359 F. 3d 263, (3d Cir. 2004), for the
proposition that the Solomon Amendment impermissibly
obligates them to "subsidize" military recruiting. In all these
cases the challenged statutes obligated individuals to make
direct payments of money to finance private speech with
which they disagreed. Here, in contrast, the recruiting
91
activities of military recruiters are paid for exclusively with
federal tax revenues; the Solomon Amendment does not
obligate educational institutions to pay one red cent to the
government or to a private organization. Although Appellants
complain of having to provide "scarce interview space" and
"make appointments," (Appellant br. at 31), this kind of
physical accommodation simply does not present the
constitutional concern underlying cases like Abood ,
Glickman, United Foods and Cochran—the concern that
compelling an individual to pay for someone else's speech
impinges on his right to "believe as he will" and to have his
beliefs "shaped by his mind and his conscience rather than
coerced by the State." Abood, 431 U.S. at 235.
Unlike Abood, this case does not involve the right to
make or not make “contributions for political purposes.” 431
U.S. at 234. Unlike Glickman, there was no mandatory
assessments similar to those to be paid by growers of
nectarines, plums and peaches under regulations 7 C.F.R.
sections 916.31©), 917.35(f) promulgated under the
Agricultural Marketing Agreement Act, 7 U.S.C. § 601 et seq.
Unlike United Foods, there were no mandatory assessments
similar to those imposed on mushroom producers for the
purpose of funding generic mushroom advertisements under
the Mushroom Act, 7 U.S.C. § 6101. Unlike Cochran, there
were no mandatory assessments similar to those imposed on
milk producers under the Dairy Promotion Stabilization Act
of 1983, 7 U.S.C. § 4501 et seq. The teachings of United
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Foods and Cochran are not applicable because, unlike the
compelled advertising scheme in those cases, the principal
object of the Solomon Amendment is not communication of
expression but rather a furtherance of the government’s
compelling interest in raising and maintaining a military force
as mandated by the Constitution. Unlike a regulatory scheme
requiring subsidization of generic advertising for fruit,
mushrooms or milk, the Solomon Amendment “impose[s] no
restraint on the freedom of any [law school] to communicate
any message to any audience . . . do[es] not compel any
person to engage in any actual or symbolic speech . . . [and]
do[es] not compel the [law schools] to endorse or to finance
any political or ideological views.” Glickman v. Wileman
Bros. & Elliott, Inc., 521 U.S. 457, 469-470 (1997).
Moreover, even if law schools were being required to
provide direct financial payments to the government to
support military recruiting, which they manifestly are not, the
First Amendment provides far more latitude for compelled
financial support of governmental speech than it does for
compelled support of private speech. See Abood, 431 U.S. at259 n. 13 (Powell, J., concurring in the judgment)
("Compelled [financial] support of a private association is
fundamentally different from compelled support of
government"); United States v. Frame, 885 F.2d 1119, 1130-
1133 (3rd Cir. 1989).
Finally, what we said in Frame is relevant here:
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Both the right to be free from compelled expressive
association and the right to be free from compelled
affirmation of belief presuppose a coerced nexus between the
individual and the specific expressive activity. When the
government allocates money from the general tax fund to
controversial protects or expressive activities, the nexus
between the message and the individual is attenuated.
885 F. 2d at 1132.
It becomes necessary to say again that our task in this
case is to identify and weigh competing interests and to
emphasize again that in applying the balancing-of-interests
test of Roberts v. United States Jaycees, 468 U.S. 609 (1984),
the law schools’ interests here fall at the remote extreme of
Justice Brennan’s spectrum— “where that relationship’s
objective characteristics locate it . . . [near] the most
attenuated of personal attachments.” 468 U.S. at 620.
The attempt to analogize the First Amendment
considerations in compelling an individual to pay for someone
else's speech with a program of military recruiting fails
completely because the extreme differences in the compared
factual scenarios totally dominate over any purported
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resemblances. What we explained in In re Linerboard Anti
Trust Litig., 305 F. 3d 145 (3d Cir. 2002), is appropriate here:
To draw an analogy between two entities is to indicate one or
more respects in which they are similar and thus argue that the
legal consequence attached to one set of particular facts may
apply to a different set of particular facts because of the
similarities in the two sets. Because a successful analogy is
drawn by demonstrating the resemblances or similarities in
the facts, the degree of similarity is always the crucial
element. You cannot conclude that only a partial resemblance
between two entities is equal to a substantial or exact
correspondence.
Id. at 147.
VI.
In challenging the district court’s reasoning,
Appellants also seek to analogize this case to the teachings of
Dale. As the district court recognized, (J.A. 68-70), a
comparison of this case to Dale shows not why the Appellants
should prevail in this case, as urged by the majority, but why
they must lose, see id. at 648-650.
In Dale, the Court was presented with a New Jersey
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public accommodations law that compelled the Boy Scouts of
America (“BSA”) to admit “an avowed homosexual and gay
rights activist,” id. at 644, as an adult member and
scoutmaster. The declared mission of the BSA was to “instill
values in young people,” id. at 649, and disapproval of
homosexual conduct was one of BSA’s values. BSA relied on
its scoutmasters to “inculcate [Boy Scouts] with the Boy
Scouts’ values—both expressly and by example.” Id. at 650.
The Court reasoned that “[t]he forced inclusion of an
unwanted person in a group infringes the group’s freedom of
expressive association if the presence of that person affects in
a significant way the group’s ability to advocate public or
private viewpoints.” Id. at 648. The Court found that “the
presence of Dale as an assistant scoutmaster would surely
interfere with the Boy Scouts’ choice not to propound a point
of view contrary to its beliefs,” because it would “force the
organization to send a message, both to the youth members
and the world, that the Boy Scouts accept[] homosexual
conduct as a legitimate form of behavior.” Id. at 653-654.
Let me now count the two ways the Solomon
Amendment differs from the state statute in Dale, both of
which are critical to the law’s impact vel non on associational
interests. First, the Solomon Amendment simply does not
impinge on the right of educational institutions to determine
their membership. See 10 U.S.C. § 983. It does not purport to
tell colleges and universities whom to admit as students or
whom to hire as professors or administrators. It merely
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requires them to allow the transient presence of recruiters,
who are not a part of the law school and do not become
members through their mere presence. In contrast to the
scoutmaster in Dale, recruiters do not purport to speak
“for”—and cannot reasonably be understood to be speaking
“for”—the law schools that they are visiting. This case thus
does not involve “[t]he forced inclusion of an unwanted
person in a group.” Dale, 530 U.S. at 648. It cannot be denied
that this was the genesis of the constitutional injury in Dale.
Second, as noted in my discussion of Hurley, recruiting
is an economic activity whose expressive content is strictly
secondary to its instrumental goals. In contrast, the
fundamental goal of the relationship between adult leaders
and boys in the Boy Scout movement is “[t]o instill values in
young people,” a goal that is pursued “by example” as well as
by word. Id. at 649, 650. As a result, compelling the BSA to
appoint an adult leader who was committed to “advocacy of
homosexual teenagers’ need for gay role models,” id. at 645,
struck at the heart of the organization’s goals.
Military recruiting is not intended to “instill values” in
anyone, nor is it meant to convey any message beyond the
military’s interest in enlisting qualified men and women to
serve as military lawyers and judges. As a result, the burden
on the law schools’ associational interests is vastly less
significant than the burden imposed on the BSA by the statute
in Dale.
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These profound distinctions demonstrate that the
teachings of Dale lack the power to dilute the judiciary’s
traditional deference to Congress in the interest of national
defense.
VII.
I now turn to the proper measure by which to evaluate
the weighing of competing interests implicated in this case.
There should be no question that the teachings of United
States v. O’Brien, 391 U.S. 367 (1968), control. In that case,
the Court considered whether a 1965 amendment to the
Universal Military Training and Service Act, which
prohibited the knowing destruction or mutilation of a
Selective Service Registration Certificate, was
unconstitutional as applied to a man who burned his
certificate as a symbolic expression of his antiwar beliefs. Id.
at 369-370. The Court stated:
We cannot accept the view that an apparently
limitless variety of conduct can be labeled
“speech” whenever the person engaging in the
conduct intends thereby to express an idea.
However, even on the assumption that the
alleged communicative element in O’Brien’s
conduct is sufficient to bring into play the First
Amendment, it does not necessarily follow that
the destruction of a registration certificate is
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constitutionally protected activity. This Court
has held that when “speech” and “nonspeech”
elements are combined in the same course of
conduct, a sufficiently important governmental
interest in regulating the nonspeech element can
justify incidental limitations on First
Amendment freedoms.
Id. at 376.
In this case, the law schools portray their efforts to
keep military recruiters off their campuses as “quintessential
expression.” (Appellant br. at 20.) But when an institution
excludes military recruiters from its campuses or otherwise
restricts their access to students, it is engaging in something
different from “quintessential expression.” It is engaging in a
course of conduct which contains both nonspeech and speech
elements. The acts which the law schools claim they are
compelled to do by virtue of the military’s post-2001
“unwritten policy”—disseminating and posting military
recruitment literature, making appointments for military
recruiters to meet with students and providing military
recruiters a place to meet with students—also contain both
nonspeech and speech elements.
The constitutional framework for evaluating such laws
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is provided by O’Brien. Regulation of conduct that imposes
incidental burdens on expression is constitutional if “it
furthers an important or substantial governmental interest; if
the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to
the furtherance of that interest.” 391 U.S. at 377. “[A]n
incidental burden on speech is no greater than is essential, and
therefore is permissible under O’Brien, so long as the neutral
regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.”
Albertini, 472 U.S. at 689. Regulations of conduct that place
incidental burdens on expression are not subject to a least-
restrictive-alternative requirement “[s]o long as the means
chosen are not
substantially broader than necessary to achieve the government’s
interest, . . . the regulation will not be invalid simply because a
court concludes that the government's interest could be
adequately served by some less-speech-restrictive alternative.”
Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).
The Solomon Amendment readily passes constitutional
muster under these constitutional standards. The Appellants
themselves do not dispute that the government has a substantial
interest—indeed, a compelling one— in recruiting talented men
and women for the nation’s armed forces. As the Court
recognized in O’Brien, “the Nation has a vital interest in having
a system for raising armies that functions with maximum
efficiency . . .” 391 U.S. at 381. Effective military recruiting is
the linchpin of that system. See City of Phil., 798 F.2d at 86(“Congress considers access to college and university
employment facilities by military recruiters to be a matter of
paramount importance.”)
The government’s interest in military recruiting, as
embodied in the Solomon Amendment, is manifestly “unrelated
to the suppression of free expression.” O’Brien, 391 U.S. at 377.
The Solomon Amendment makes no effort to condition federal
funding on the absence of campus criticism of military policies;
a law school and its faculty and students are free to denounce
military recruiting policies without jeopardizing federal funding
in the slightest. The only thing that
matters under the Solomon Amendment is whether the
institution is denying access to military recruiters. And if the
institution is denying access, it is irrelevant under the Solomon
Amendment whether its reasons for doing so are communicative
(to convey a message about its own principles or those of the
military) or non-communicative (for example, to avoid
participation in a recruiting process that it regards as unfair).
What matters under the Solomon Amendment is “only the
independent noncommunicative impact of [the] conduct,” id. at
382,—its impact on the ability of the military to reach students.
The Appellants argue that because the Solomon
Amendment is intended to facilitate military recruiting, and
because recruiters speak to students, the governmental interest
underlying the Solomon Amendment “is not unrelated to
expression.” (Appellant br. at 26.) But the question posed by
O’Brien is not whether the governmental interest is “unrelated
to expression,” but instead whether the interest “is unrelated to
the suppression of free expression.” 391 U.S. at 377 (emphasis
added). The Appellants’ argument deliberately omits the
touchstone of suppression from the constitutional test. Once it
is recognized that suppression of expression is the focus of
O’Brien, the Appellants’ argument falls apart, for the
governmental interests served by the Solomon Amendment are
manifestly unrelated to the suppression of anyone’s expression.
It bears constant emphasis that the First Amendment test
involves a balancing-of-interests as repeatedly emphasized
above. The O’Brien measure is quintessentially correct because
this case involves a weighing of the government’s interest in
national defense and Appellants’ interest in First Amendment
protections. In this posture it is difficult to conjure a case that is
a more perfect fit for the exposition in O’Brien.
For the foregoing reasons, I respectfully dissent.
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