Federal appellate decision protects free speech decisions to oppose Pentagon’s gay ban
A three-judge panel of the U.S. Court of Appeals for the Third Circuit, based in Philadelphia, ruled on November 29 by a 2-1 vote that a federal law that cuts off funding to law schools that ban military recruiters from their campuses violates the schools’ First Amendment rights. The majority of the appellate panel found that the plaintiffs, a group of law schools, professors and students, had shown the likelihood that they would prevail on their constitutional claim, and were entitled to an injunction barring enforcement of a federal law, the Solomon Amendment, pending a full trial on the merits of their case.
Congress first adopted the Solomon Amendment in 1994 as part of a defense appropriations act. It was introduced by New York Rep. Gerald Solomon, a Republican, who was incensed that military recruiters were barred from the law school placement office at the State University of New York at Buffalo, in his congressional district, because of the anti-gay policies of the Pentagon. The amendment has been included in one form or another in all subsequent defense appropriations bills, and just this past summer, while this appeal was pending, Congress toughened the law to require that military recruiters have the same quality and scope of access as all other recruiters at any school that wanted to keep receiving federal financial assistance.
The opinion for the court by Judge Thomas L. Ambro accepted two alternative theories in support of the plaintiffs’ case. Ironically, both theories are grounded in one of the major gay rights defeats from the U.S. Supreme Court, Boy Scouts of America v. Dale, in which the Court held that it would violate the First Amendment rights of the Boy Scouts for New Jersey to apply its non-discrimination law to compel the Scouts to accept an openly-gay man as an assistant Scoutmaster.
Turnabout is fair play in constitutional law, apparently, for Judge Ambro found that by threatening to penalize universities with the loss of millions of dollars if they do not provide “equal access” to their facilities for military recruiters, the government is improperly intruding on the freedom of expressive association of the law schools and subjecting them to unconstitutional compelled speech, just as New Jersey was found to have done to the Boy Scouts in the earlier case. Under both theories, expressive association and compelled speech, the government could only prevail by showing that its policy is necessary to serve a compelling public interest, and is narrowly tailored to achieve that interest without unnecessarily abridging constitutional rights – the so-called “strict scrutiny” test.
By contrast, District Judge Lifland, of a lower court, had rejected the argument that this case involved either expressive association or compelled speech, instead treating it as an “expressive conduct” case. Government policies that impede expressive conduct are evaluated under a less demanding standard of “heightened scrutiny,” under which Judge Lifland had found that the government’s rationale for the policy was sufficient to uphold it against constitutional attack, at least for purposes of preliminary injunctive relief.
In order to get an injunction against a government policy in the period before a full trial on the merits of the case, plaintiffs have to show that their challenge is likely to succeed on the merits at trial, and that failure to provide interim relief would subject them to irreparable injuries and disserve the public interest. Courts have found that unconstitutional restrictions on free speech are presumptively irreparable in monetary terms and contrary to the public interest in free and uninhibited debate, so the major hurdle facing the plaintiffs in this case was to convince the court that their constitutional attack on the Solomon Amendment was likely to succeed at trial.
Rejecting Judge Lifland’s approach, the panel majority found that this was clearly a case both of expressive association and compelled speech. Judge Ambro found that a law school is an “expressive association,” that is, an institution that seeks to “transmit a system of values,” to quote the Supreme Court’s characterization of the Boy Scouts in the Dale case, and that, as the Supreme Court had deferred to the Boy Scouts’ contention that requiring them to have an openly-gay adult Scout leader would affect their ability to express their viewpoint, the court in this case should defer to the law schools’ argument that requiring them to accommodate military recruiters would adversely affect their ability to express their views on non-discrimination.
“Rarely has government action been deemed so integral to the advancement of a compelling purpose as to justify the suppression or compulsion of speech,” wrote Ambro. Although the court was willing to presume that the government had a compelling interest in recruiting talented lawyers to serve in the Judge Advocate General Corps (the military’s legal branch, which is the subject of law school recruitment efforts), it found that the government had presented no evidence in its opposition to the motion for preliminary relief that the Solomon Amendment was “narrowly tailored” to achieve this end.
Contrary to private employers whose limited resources for recruitment make access to law school placement offices important, Ambro found that the military has many alternative ways to recruit and the resources to do so. Ambro rejected the argument by dissenting Judge Ruggero Aldisert that as a matter of common sense the military’s ability to recruit lawyers would be seriously undermined by exclusion from law school placement offices.
Ambro also found that there was strong support for the alternative theory of compelled speech in this case. “Recruiting is expression,” he asserted. “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.’” In prior cases, the Supreme Court and other federal courts have made clear that requiring one organization to support the speech of another is “compelled speech” raising significant First Amendment concerns. Although those other cases involved soliciting or proselytizing rather than recruiting, the majority of the panel found the analogies persuasive, and the rest of the analysis followed the same lines as for the expressive association claim.
Ambro last turned to the theory that District Judge Lifland had used to analyze this case – the expressive conduct theory – and found that the plaintiffs would still be entitled to an injunction under this theory, because the government had presented no evidence that operation of the Solomon Amendment enhanced the recruitment of military lawyers. In fact, he found that the record showed just the opposite.
“It may be the case, as the Government argues, that on-campus recruitment is an employer’s principal tool for attracting talented students,” he wrote. “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.”
“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,” wrote Ambro. “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.”
Judge Ambro was appointed to the court by Bill Clinton in 2000. The other judge on the panel who agreed to this decision, Walter Stapleton, was appointed to the district court by Richard Nixon and elevated to the appeals court by Ronald Reagan.
The dissenter, Judge Aldisert, was appointed to the court by Lyndon Johnson. Born in 1919, he is the only member of the panel who lists military service in his judicial biography, and is now a part-time senior judge. Aldisert argued in dissent that Lifland’s analysis was correct, and that the military’s compelling interest in recruiting lawyers from the schools that were barring military recruiters justified any incidental burden on the schools, which he found to be minor. Noting that military recruiters would only be present at any given school for a brief period of time, Aldisert asserted that any burden on expressive association was slight, and that given the disclaimers that the law schools made, disassociating themselves from any agreement with the military’s anti-gay policies, there was no compelled speech.
He also rejected the majority’s argument that on-campus recruitment was not necessary to achieve the recruitment goals of the military. “If military recruiters are denied the ability to reach students on the same terms as other employers,” he wrote, “damage to military recruiting is not simply probable but inevitable. The Solomon Amendment reflects Congress’ judgment about the requirements of military recruiting, and ‘the validity of such regulations does not turn on a judge’s agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests.’”
Aldisert also criticized the law schools for appearing “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.”
That the government will attempt to get this ruling reversed is inevitable, but for now the law schools who joined together to bring this suit under the banner of the Forum for Academic and Institutional Rights (“FAIR”) can savor a preliminary victory in the long struggle against anti-gay discrimination in the military.
The appeal on behalf of FAIR was argued on a volunteer basis by Joshua Rosenkranz, an attorney at the New York office of Heller, Ehrman, White & McAuliffe, a law firm with a long history of public interest work for the gay rights movement.
New York Law School, on whose faculty this correspondent serves, is one of the law schools in the FAIR coalition that brought the lawsuit.