Facts
- A group of law schools and faculties opposed the military’s then-existing policy regarding homosexual service members and sought to restrict military recruiting on their campuses.
- Congress enacted 10 U.S.C. § 983 (the Solomon Amendment), conditioning specified federal funds on educational institutions providing military recruiters access equal to that given other recruiters.
- The statute, as applied, required a law school (and its university) to give military recruiters the same access to campus facilities and students as the nonmilitary recruiter receiving the most favorable access.
- The district court denied preliminary injunctive relief, concluding the statute regulated conduct (recruiting access) rather than protected speech.
- The court of appeals reversed, holding the funding condition likely violated the First Amendment under an unconstitutional-conditions theory.
- The Supreme Court granted review.
Issues
- Whether conditioning specified federal funds on providing military recruiters equal access to law school campuses and students violates the First Amendment rights of free speech.
- Whether the access requirement infringes law schools’ First Amendment right of expressive association.
- Whether the funding condition constitutes an unconstitutional condition by forcing the surrender of First Amendment rights.
- Whether the statute is invalid as a regulation affecting expressive conduct under the framework for incidental burdens on expression.
Decision
- The Supreme Court reversed the court of appeals and remanded.
- The Court held the Solomon Amendment constitutional and enforceable.
- The Court concluded the statute regulates conduct (granting access), not what schools may or may not say.
- The Court held the statute does not compel schools to affirm or endorse the military’s message and leaves schools free to criticize military policy.
- The Court held the statute does not violate expressive association because hosting recruiters for limited recruiting activity does not force acceptance of unwanted members or materially alter a school’s message.
- The Court rejected the unconstitutional-conditions holding because, if Congress may impose the access requirement directly without violating the First Amendment, it may attach the same requirement to the receipt of federal funds.
- The Court stated the statute would be valid even if analyzed as regulating conduct with incidental effects on expression.
Legal Principles
- A law requiring equal access for recruiters to campus facilities and students regulates conduct and does not, by itself, compel speech or institutional endorsement.
- No compelled-speech violation occurs where regulated entities remain free to state their opposition to the government’s policy and to disassociate themselves from a recruiter’s viewpoint.
- Expressive-association protection is not triggered merely because an institution must permit access to outside speakers or recruiters for limited events; the First Amendment does not guarantee a right to exclude recruiters on the theory that access implies agreement.
- A federal funding condition is not unconstitutional when it does not require waiver of a constitutional right; where the underlying requirement is itself permissible, conditioning funds on compliance does not offend the unconstitutional-conditions doctrine.
- Regulation that incidentally affects expression may be sustained when directed at conduct and justified by substantial governmental interests unrelated to suppressing expression.
Conclusion
The Court upheld the Solomon Amendment, ruling that Congress may condition certain federal funds on law schools providing military recruiters access equal to other employers because the requirement regulates access-related conduct, does not compel speech or endorsement, and does not violate expressive association or the unconstitutional-conditions doctrine.