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FOOTNOTES  


FN1.   126 S. Ct. 1297 (2006).


FN2.    Id. at 1302.


FN3.    10 U.S.C. 654.


FN4.   10 USC 983.


FN5.   10 U.S.C. 983. Specifically, in its current formulation, the statute denies certain federal funding to an institution of higher education that “has a policy or practice ... that either prohibits, or in effect prevents” the military “from gaining access to campuses, or access to students ... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.” 10 U.S.C. 983 (b).  The statute provides an exception for an institution with “a longstanding policy of pacifism based on historical religious affiliation.” 983(c)(2).  The funding at risk under the Solomon Amendment is limited to funding from the Departments of Defense, Homeland Security, Transportation, Labor, Health and Human Services, and Education, and the Central Intelligence Agency and the National Nuclear Security Administration of the Department of Energy. 10 U.S.C. 983(d)(1).  The statute does not affect funds provided for student financial assistance, 10 U.S.C. 983(d)(2), but the loss of the listed federal funding applies institution wide. 10 U.S.C. 983(b).


FN6.   Rumsfeld, 126 S. Ct. at 1303.


FN7.   Although this choice of doing what Congress demands or forfeiting federal funds may seem draconian, it is essentially the same choice imposed by Title VI (42 U.S.C. 2000d), Title IX (20 U.S.C. 1681), and Section 504 (29 U.S.C. 794), among many others enacted under the Spending Clause.


FN8.   Rumsfeld, 126 S. Ct. at 1302.  In doing so, FAIR members wished to express “their opposition to discrimination based on, among other factors, sexual orientation” and sought “to restrict military recruiting on their campuses because they object to the policy Congress has adopted with respect to homosexuals in the military.”  Id.


FN9.   Forum for Academic and Institutional Rights v. Rumsfeld, 291 F. Supp.2d 269 (D. N.J. 2003).


FN10.   Rumsfeld, 126 S. Ct. at 1303 (discussing the previous version of 10 U.S.C. 983(b)).


FN11.    291 F. Supp. 2d at 283 (emphasis added).


FN12.    Rumsfeld, 126 S. Ct. at 1303.


FN13.    291 F. Supp. 2d at 321, 404-08.


FN14.    Id. at 304.


FN15.    Id. at 308.


FN16.    The district court determined that the Supreme Court’s opinion in U.S. v. O’Brien, 391 U.S. 367 (1968), allowed Congress to regulate the conduct.  See  291 F. Supp.2d at 311-14.


FN17.    See H.R. Rep. No. 108-443, pt. 1 at 6 (2004).


FN18.    10 U.S.C. 983(b).


FN19.    Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004).


FN20.    Id. at 229-43.


FN21.    Id. at 243-244.  The majority also held that, even if recruiting students was conduct, the O’Brien standard would not permit Congress to regulate that conduct. Id. at 244-46.  The Third Circuit found that “the military has ample resources to recruit through alternative means,” suggesting “loan repayment programs” and “television and radio advertisements” as examples. Id. at 234-35.


FN22.   530 U.S. 640, 644 (2000).


FN23.   390 F.3d at 230-35.  After taking issue with each of the majority’s points, the dissent focused on the O’Brien standard and argued that the Solomon Amendment easily satisfied that standard. Id. at 247-62.


FN24.    Rumsfeld, 126 S. Ct. at 1313.  Indeed, the Court chastised FAIR for attempting “to stretch a number of First Amendment doctrines well beyond the sort of activities these doctrines protect. . . .  [T]he law schools’ effort . . .  plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.”  Id.


FN25.   Rumsfeld, 126 S. Ct. at 1302-06.


FN26.   Id. at 1304-05.


FN27.   According to these amici, “the Solomon Amendment’s equal-access requirement is satisfied when an institution applies to military recruiters the same policy it applies to all other recruiters.”  Id. at 1305.


FN28.   Id.


FN29.   Id. at 1305-06.  As the Court explained, “The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it.  Instead, it looks to the result achieved by the policy and compares the ‘access ... provided’ military recruiters to that provided other recruiters.  Applying the same policy to all recruiters is therefore insufficient to comply with the statute if it results in a greater level of access for other recruiters than for the military.  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.”  (emphasis in original).


FN30.   Id. at 1305-06.


FN31.   Id. at 1306-07.


FN32.    Id. at 1306.


FN33.    U.S. Const. art. I, 8, cl. 1.  Congress’s reliance on the Spending Clause in enacting the Solomon Amendment was evidenced by the denial of certain federal funds to institutions for refusal to grant military recruiters access to campuses and students.


FN34.    U.S. Const. art I, 8, cl.  12-13.


FN35.   The Court’s decisions “recognize a limit on Congress’ ability to place conditions on the receipt of funds.” Rumsfeld, 126 S. Ct. at 1306.  Thus, “the government may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech even if he has no entitlement to that benefit.”  United States v. American Library Assn., Inc., 539 U.S. 194, 210 (2003) (quoting Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674, (1996)).


FN36.    Id.  See also  Speiser v. Randall, 357 U.S. 513, 526 (1958) (“It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment.  The power to create presumptions is not a means of escape from constitutional restrictions”). (citation omitted).


FN37.   Rostker v. Goldberg, 453 U.S. 57, 67 (1981).


FN38.   Rumsfeld, 126 S. Ct. at 1307.


FN39.    Id. at 1306 (quoting Rostker, at 70 (1981)).


FN40.   Rostker, 453 U.S. at 67.

 

FN41.   Rumsfeld, 126 S. Ct. at 1308.

 

FN42.  Wooley v. Maynard, 430 U.S. 705, 717 (1977) (State may not compel motorists to display state motto); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, (1943) (State may not compel children to recite the Pledge of Allegiance).

 

FN43.   Rumsfeld, 126 S. Ct. at 1308.

 

FN44.   Id.

 

FN45.    Id.

 

FN46.   Rumsfeld, 126 S. Ct. at 1309-10.

 

FN47.   See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 20-21 (1986);  Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974) (right-of-reply statute violates editors’ right to determine the content of their newspapers).

 

FN48.   Rumsfeld, 126 S. Ct. at 1309.

 

FN49.    Id.  As the Court explained: “Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive.  Law schools facilitate recruiting to assist their students in obtaining jobs.  A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.”  Id at 1309-10.

 

FN50.    Id. at 1310.  See also PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980) (upholding a state law that compelled the owner of private shopping center to allow certain expressive activities on his property).

 

FN51.   Rumsfeld, 126 S. Ct. at 1310.  See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 841 (1995).

 

FN52.   Rumsfeld, 126 S.Ct. at 1310-11.

 

FN53.    Id. at 1311.  As the Court explained: “Prior to the adoption of the Solomon Amendment’s equal-access requirement, law schools ‘expressed’ their disagreement with the military by treating military recruiters differently from other recruiters.  But these actions were expressive only because the law schools accompanied their conduct with speech explaining it.  For example, the point of requiring military interviews to be conducted on the undergraduate campus is not ‘overwhelmingly apparent.’  An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.”  Id. at 1310-11.

 

FN54.    Id. (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).

 

FN55.   Id. at 1311.

 

FN56.   Id. at 1311-13.

 

FN57.   Id. at 1311-12.  See also  Dale, 530 U.S. at 644; Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).

 

FN58.   Rumsfeld, 126 S. Ct. at 1312.

 

FN59.   Id. at 1313.

 

FN60.   Id.

 

FN61.   Id.

 

FN62.   Rumsfeld, 126 S. Ct. at 1308.

 

FN63.    “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race.  The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”  Id.  (citations omitted).

 

FN64.   Of course, there are circumstances where government can compel speech and dictate the content.  Most obviously, Government may compel government employees to speak in a particular way.   See Rust v. Sullivan, 500 U.S. 173 (1991).  Cf. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)(Speech by a government employee in the performance of their official duties is not constitutionally protected).  Similarly, government may compel private citizens or employers to speak in a particular way as a means of insuring compliance with laws passed as part of the regulation of interstate commerce or, in the case of state and local governments, the local police power.  For example, because government can prohibit all racial discrimination in employment, see 42 U.S.C. 2000e et seq., government can certainly say that advertisements for jobs do not contain racially discriminatory terms.

 

FN65.   See e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 841 (1995).

 

FN66.   Id. at 1311.

 

FN67.   In this sense, Rumsfeld may be viewed as an extension of a trend that began with Virginia v. Black, 538 U.S. 343 (2003), where the Court allowed the States to criminalize cross burning in some instances.

 

FN68.   Id. at 1312 (emphasis added) (citations omitted).

 

FN69.   Id. at 1312 (emphasis added) (citations omitted).

 

FN70.   Rumsfeld, 126 S. Ct. at 1313.

 

FN71.   Of course, if college and university officials are going to express disapproval in the name of the university, they should make certain that they are authorized to speak for the institution.  There likely will be situations – particularly at public institutions – where the governing board has a very different attitude toward the military’s sexual orientation discrimination.