The Forum for Academic and Institutional Rights (FAIR) is an association of laws schools whose mission is to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of higher education institutions. FAIR favors restricting military recruiting on their campuses because of their discriminatory policy towards gays and lesbians. FAIR initially sought a preliminary injunction against enforcement of the Solomon Amendment because it forced them to choose between exercising their free speech right and receiving federal funding. The Third Circuit Court of Appeals overturned a district court ruling against FAIR, holding that the law schools free speech rights were violated by the Solomon Amendment.
As the Court describes the Solomon Amendment requirements, “law schools must ensure that their recruiting policy operates in such a way that military recruiters are given access to students at least equal to that “provided to any other employer.” The Court said:
The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities . . . Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. The Solomon Amendment neither limits what law schools may say nor requires them to say anything.
It is important to recognize what the Rumsfeld v. FAIR decision does not say as much as what it does say. The constitutionality of the military’s discriminatory “Don’t Ask, Don’t Tell” policy, which Congress and former President Bill Clinton enacted into law in 1993, was not considered by the Court in this case. In light of more recent decision of the high court in Lawrence v. Texas (striking down anti-sodomy law) and Romer v. Evans (striking down prohibition on local laws protecting gays and lesbians against discrimination), a challenge to the “Don’t Ask, Don’t Tell” law is ripe for challenge.