"the law schools are entitled to at least as much deference as the Boy Scouts"

Excerpts from the US Court of Appeals for the Third Circuit ruling , in Forum for Academic and Institutional Rights v. Rumsfeld (opinion filed November 29, 2004):

Just as the Boy Scouts believed that ‘homosexual conduct is inconsistent with the Scout Oath’ …, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that ‘homosexuals do not provide a role model consistent with the expectations of Scouting families’ …, the law schools maintain that military recruiters engaging in exclusionary hiring ‘do not provide a role model consistent with the expectations of’ … their students and the legal community. Just as the Boy Scouts endeavored to ‘inculcate [youth] with the Boy Scouts’ values—both expressively and by example’ …, the law schools endeavor to ‘inculcate’ their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies….And just as ‘Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior’ …, the presence of military recruiters ‘would, at the very least, force the law schools to send a message,’ both to students and the legal community, that the law schools ‘accept’ employment discrimination ‘as a legitimate form of behavior.’….

Moreover, the District Court’s scrutiny of the law schools’ belief that the presence of military recruiters will undermine their expressive message about fairness and social justice violates the Dale Court’s instruction to ‘give deference to an association’s view of what would impair its expression.’….the reason why there was ‘no question’…that a gay scoutmaster would undermine the Boy Scouts’ message was because the Boy Scouts said it would….. In our case, FAIR has supplied written evidence of its belief that the Solomon Amendment’s forcible inclusion of and assistance to military recruiters undermines their efforts to disseminate their chosen message of nondiscrimination. Accordingly, we must give Dale deference to this belief, and conclude that likely satisfies the second element of an expressive association claim…..[Footnote: Furthermore, the law schools are entitled to at least as much deference as the Boy Scouts, as the Supreme Court has recognized in other contexts that universities and law schools ‘occupy a special niche in our constitutional tradition,’ Grutter v. Bollinger (2003)].

We presume that the Government has a compelling interest in attracting talented military lawyers. But ‘[i]t is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.’…[T]he Solomon Amendment could barely be tailored more broadly. Unlike a typical employer, the military has ample resources to recruit through alternative means….The availability of alternative, less speech-restrictive means of effective recruitment is sufficient to render the Solomon Amendment unconstitutional under strict scrutiny analysis…But our path in this case is even clearer. The Government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal. And not only might other methods of recruitment yield acceptable results, they might actually fare better than the current system. In fact, it may plausibly be the case that the Solomon Amendment, which has generated much ill will toward the military on law school campuses, actually impedes recruitment…..

[T]he military’s recruiting is expressive of a message with which the law schools disagree. To comply with the Solomon Amendment, the law schools must affirmatively assist military recruiters in the same manner they assist other recruiters, which means they must propagate, accommodate, and subsidize the military’s message. In so doing, the Solomon Amendment conditions funding on a basis that violates the law schools’ First Amendment rights under the compelled speech doctrine….

Unsurprisingly…the record demonstrates that openly gay persons who meet with military recruiters are told by the recruiters that they may not pursue military careers….by directly providing ‘access’ to campuses for speech by military recruiters where law students are told that openly gay applicants may not serve, the Solomon Amendment requires the law schools to allow an objectionable message counter to their beliefs….The statute insists not only on access to campus for military recruiters, but the active and equal assistance of law schools’ career services offices….Like the forced display of an unwanted motto on one’s license plate, or the compulsory recitation of a pledge, this is compelled speech….Like the forced inclusions of a parade contingent, a statement in the extra space of a utility’s billing statement, or a response in a newspaper’s editorial page, this is compelled speech….Like mandatory assessments to support advertisements or political funds, this is compelled speech….

The Government has not shown that the assistance from law schools that the Solomon Amendment requires is narrowly tailored to advance its interest in recruiting….as we noted above, the Government has chosen to submit no evidence that would support the necessity of requiring law schools to provide the military with a forum for, and assistance in, recruiting….The Government fails to offer even an affidavit indicating that enforcement of the Solomon Amendment has enhanced military recruiting efforts. It suggests simply that the scope of the remedy sought by the plaintiffs relieves the Government of its obligation, pursuant to the First Amendment, to justify its curtailment of expression. How this is so we cannot conjure. We are unaware of any case so holding. [Footnote: [T]his is not a case where the Government has presented less evidence than might otherwise be required; here the Government has presented no evidence.] And while the Government emphasizes that the Nation’s military is at stake, invoking the importance of a well-trained military is not a substitute for demonstrating that there is an important governmental interest in opening the law schools to military recruiting. See Rostker v. Goldberg, 453 U.S. 57, 89 (1981) (‘“[T]he phrase ‘war power’ cannot be invoked as a talismanic incantation to . . . remove constitutional limitations safeguarding essential liberties.’”…)

…[I]t is hardly ‘common sense,’ as the military alleges, that its presence on campus amidst . . . commotion and opposition has aided its recruitment efforts….[T]he government has chosen not to produce any evidence that it is no more than necessary to further the Government’s interest. Perhaps this explains why the DOD initially objected to the Amendment as ‘unnecessary’ and ‘duplicative.’ 140 Cong. Rec. H3864 (daily ed. May 23, 1994).

[T]he Solomon Amendment cannot condition federal funding on law schools’ compliance with it. FAIR has a reasonable likelihood of success on the merits and satisfies the other injunctive elements as well. We reverse and remand for the District Court to enter a preliminary injunction against enforcement of the Solomon Amendment.