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Rumsfeld v. Forum for Academic & Institutional Rights (“FAIR””) (04-1152)
Greetings, Court fans!
The Court continued its relatively blistering pace yesterday, unanimously holding that Congress can deny federal funding to universities that restrict military recruiting in opposition to the “Don’t Ask, Don’t Tell” policy governing homosexuals in the armed services. As we head into a brief recess, that makes it 39 opinions so far this term, with 32 coming in argued cases (versus 29 and 24, respectively, as of this time last Term).
The case was Rumsfeld v. Forum for Academic & Institutional Rights (“FAIR”) (04-1152), in which a coalition of law schools and faculties challenged the constitutionality of the Solomon Amendment, 10 U.S.C. § 983. That law provides that if any part of an educational institution denies equal access to military recruiters, the entire institution loses certain federal funds. Law schools represented by FAIR wished to restrict access to military recruiters in protest of “Don’t Ask, Don’t Tell.” They challenged the Solomon Amendment on First Amendment grounds, arguing that forced inclusion of military recruiters violated their freedoms of speech and association by forcing them to appear to condone “Don’t Ask, Don’t Tell” and to associate with military recruiters. At the preliminary injunction stage, the Third Circuit agreed, holding that the Solomon Amendment unconstitutionally forced FAIR to choose between surrendering First Amendment freedoms and losing federal funding.
In an opinion by Chief Justice Roberts, the Court unanimously reversed (minus Justice Alito, who did not participate). The 8-0 vote certainly was a surprise, particularly in light of the substantive nature of the opinion and the controversy generated by the case. Although the case ostensibly fell within Congress’ power under the Spending Clause of the Constitution, the Court noted that it really implicated Congress’ “broad and sweeping” power to “raise and support Armies”: If Congress could directly require schools to give equal access to military recruiters under that authority, then an indirect funding condition under the Spending Clause could not possibly be unconstitutional. The Court then proceeded to rejected every one of FAIR’s arguments, finding that it was “exaggerating the reach of our First Amendment precedents” and stretching them “well beyond the sort of activities these doctrines protect.” On the compelled speech claim, the Court noted that while law schools may have to post notices that military recruiters will be interviewing in certain locations, that kind of “speech” is “plainly incidental” to conduct, which Congress generally can regulate. The Court compared the situation to requiring employers to take down “white applicants only” signs, which no one would claim involved employer speech as opposed to conduct. “Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in [past precedents] to suggest that it is.”
The Court then held that law schools’ decisions to deny access to military recruiters was not “expressive conduct” protected by the First Amendment. This protection only to conduct that is “inherently expressive” (e.g., the Texas v. Johnson flag-burning case). Because schools have to explain their reasons for denying access to recruiters (with speech), allowing or denying access is not, by itself, inherently expressive. Moreover, FAIR’s argument stretched the notion of expressive conduct too far: “If an individual announces that he intends to express his disapproval of the [IRS] by refusing to pay his income taxes, we would have to . . . determine whether the Tax Code violates the First Amendment.” And even if the Solomon Amendment did regulate expressive conduct, it satisfied past Court precedents by promoting the substantial interest in raising and supporting the armed forces, which would be hindered if the military were disfavored relative to other employers. Further, nothing about allowing military recruiting suggests that law schools agree with “Don’t Ask, Don’t Tell.” The Court had previously held that high school students can tell the difference between a school-sponsored speech and one the school was required to allow by law, and “[s]urely students have not lost that ability by the time get to law school.”
Finally, as to the freedom-of-association claim, the Court rejected FAIR’s argument on the ground that the Solomon Amendment required schools only to “interact” with recruiters, not to associate with them. Unlike the law struck down in Boy Scouts of America v. Dale, which required the Boy Scouts to accept a gay Scoutmaster, the Solomon Amendment did not require schools to make recruiters somehow part of the law school. In fact, students and faculty were free to voice disapproval of military recruiters’ message without fear of losing federal funds.
In other news, the Court granted cert in two more cases today, in Jones v. Bock (05-7058) and Williams v. Overton (05-7142). The cases raise identical issues and have been consolidated for argument. Here are the questions presented in Jones: (1) Whether the Prison Litigation Reform Act of 1995 (“PLRA”) mandates the dismissal of a prisoner’s federal civil rights lawsuit, without leave to amend, in the event that the prisoner’s complaint does not describe with particularity how the prisoner exhausted his or her administrative remedies; or instead, whether non-exhaustion is an affirmative defense; and (2) Whether the PLRA provides a “total exhaustion” rule, which requires the dismissal, without leave to amend, of a prisoner’s entire federal civil rights complaint – including causes of action that have been administratively exhausted – for failure to plead exhaustion with respect to any one or more causes of action.
That’s all for now. As always, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400
