Forum for Academic v. Rumsfeld

390 F.3d 219

FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, a New Jersey membership corporation; Society of American Law Teachers, Inc., a New York corporation; Coalition for Equality, a Massachusetts association; Rutgers Gay and Lesbian Caucus, a New Jersey association; Pam Nickisher, a New Jersey resident; Leslie Fischer, a Pennsylvania resident; Michael Blauschild, a New Jersey resident; Erwin Chemerinsky, a California resident; Sylvia Law, a New York resident, Appellants v. Donald H. RUMSFELD, in his capacity as U.S. Secretary of Defense; Rod Paige, in his capacity as U.S. Secretary of Education; Elaine Chao, in her capacity as U.S. Secretary of Labor; Tommy Thompson, in his capacity as U.S. Secretary of Health and Human Services; Norman Y. Mineta, in his capacity as U.S. Secretary of Transportation; Tom Ridge, in his capacity as U.S. Secretary of Homeland Security.

No. 03-4433.

United States Court of Appeals, Third Circuit.

Argued June 30, 2004.

Decided November 29, 2004.

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E. Joshua Rosenkranz (Argued), Timothy P. Wei, Sharon E. Frase, Heller, Ehrman, White & McAuliffe LLP, New York, NY, Warrington S. Parker, III, Aaron M. Armstrong, Benjamin D. Hauser, Heller, Ehrman, White & McAuliffe LLP, San Francisco, CA, for Appellants.

Peter D. Keisler, Assistant Attorney General, Christopher J. Christie, United State Attorney, Gregory G. Katsas (Argued), Deputy Assistant Attorney General Douglas N. Letter, Scott R. McIntosh, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, George S. Leone, Office of the United States Attorney, Newark, NJ, for Appellees.

Paul M. Smith (Argued), William M. Hohengarten, Daniel Mach, Jenner & Block, Washington, DC, Philip G. Gallagher, Lawrence S. Lustberg, Jonathan L. Hafetz, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, New York, NY, Stuart D. Rosen, Bingham McCutchen, Hartford, CT, Jonathan A. Kenter, Bingham McCutchen LLP, New York, NY, Tyler M. Paetkau, Melissa J. Goldberg, Bingham McCutchen LLP, San Francisco, CA, Walter E. Dellinger, III (Argued), Pamela Harris, O'Melveny & Myers, Washington, DC, Hilary E. Ball, Sam Heldman, Gardner, Middlebrooks, Gibbons, Kittrell & Olsen, Washington, DC, David M. Rabban, University of Texas School of Law, Austin, TX, Ann D. Springer, Donna R. Euben, American Association of University Professors, Washington, DC, John L. Moore, Jr., Louis J. Rouleau, Piper Rudnick LLP, Washington, DC, E. O'Brien Kelley, Darren G. Gibson, Piper Rudnick LLP, New York, NY, for Amicus-Appellants.

Howard J. Bashman (Argued), Fort Washington, PA, Steven W. Fitschen, The National Legal Foundation, Virginia Beach, VA, for Amicus-Appellees.

Before: AMBRO, ALDISERT and STAPLETON, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

The Solomon Amendment, 10 U.S.C. § 983, requires the United States Department of Defense ("DOD") to deny federal funding to institutions of higher education that prohibit military representatives access to and assistance for recruiting purposes. Last fall, the Forum for Academic and Institutional Rights, Inc. ("FAIR"),¹ an association of law schools and law faculty, asked the United States District Court for the District of New Jersey to enjoin enforcement of the Solomon Amendment. The District Court denied FAIR's motion. Forum for Academic & Institutional Rights, Inc. v. Rumsfeld, 291 F.Supp.2d 269 (D.N.J.2003) ("FAIR"). On appeal, we hold that FAIR has demonstrated a likelihood of success on the merits of its First Amendment claims and that it is entitled to preliminary injunctive relief. Accordingly, we reverse.

I. Background Facts² and Procedural Posture

A. Law Schools' Nondiscrimination Policies

Law schools have long maintained formal policies of nondiscrimination that withhold career placement services from employers who exclude employees and applicants based on such factors as race, gender, and religion. In the 1970s law schools began expanding these policies to prohibit discrimination based on sexual orientation as well. In response to this trend the American Association of Law Schools ("AALS") voted unanimously in 1990 to include sexual orientation as a protected category. As a result, virtually every law school now has a comprehensive policy like the following:

[The] School of Law is committed to a policy of equal opportunity for all students and graduates. The Career Services facilities of this school shall not be available to those employers who discriminate on the grounds of race, color, religion, national origin, sex, handicap or disability, age, or sexual orientation.... Before using any of the Career Services interviewing facilities of this school, an employer shall be required to submit a signed statement certifying that its practices conform to this policy.

B. Congress Passes the Solomon Amendment

The United States military excludes servicemembers based on evidence of homosexual conduct and/or orientation. See 10 U.S.C. § 654.³ Citing their nondiscrimination policies, some law schools began in the 1980s refusing to provide access and assistance to military recruiters. This caught the attention of members of Congress. In 1994, Representative Gerald Solomon of New York sponsored an amendment to the annual defense appropriation bill that proposed to withhold DOD funding from any educational institution with a policy of denying or effectively preventing the military from obtaining entry to campuses (or access to students on campuses) for recruiting purposes. National Defense Authorization Act for Fiscal Year 1995, Pub.L. No. 103-337 § 558, 108 Stat. 2663, 2776 (1994).

During debate in the House of Representatives, Representative Solomon urged the passage of his amendment "on behalf of military preparedness" because "recruiting is the key to an all-volunteer military." 140 Cong. Rec. H3861 (daily ed. May 23, 1994). He argued that it was hypocritical for schools to receive federal money while at the same time denying the military access to their campuses: "[T]ell[ ] recipients of Federal money at colleges and universities that if you do not like the Armed Forces, if you do not like its policies, that is fine. That is your [F]irst [A]mendment right[ ]. But do not expect Federal dollars to support your interference with our military recruiters." Id. The amendment's co-sponsor, Representative Richard Pombo of California, said Congress needed to target "policies of ambivalence or hostility to our Nation's armed services" that are "nothing less than a backhanded slap at the honor and dignity of service in our Nation's Armed Forces." Id. at H3863. He urged his colleagues to "send a message over the wall of the ivory tower of higher education" that colleges' and universities'"starry-eyed idealism comes with a price. If they are too good — or too righteous — to treat our Nation's military with the respect it deserves [,] then they may also be too good to receive the generous level of taxpayer dollars presently enjoyed by many institutions of higher education in America." Id.

Other Representatives opposed the amendment, alleging violations of academic freedom and civil rights. See, e.g., id. at H3862 (Rep.Dellums) ("We should not ... chill or abridge privacy, speech, or conscience by threatening a college with a Federal funds termination because it chose for whatever reason to deny access to military recruiters.... We should not browbeat them ... into becoming involuntary agents of Federal policy."). In light of Vietnam War-era legislation, rarely invoked, that already granted the DOD discretion to withhold funding from colleges and universities that barred military recruiters, see Pub.L. No. 92-436, § 606, 86 Stat. 734, 740 (1972), the DOD itself objected to the proposed amendment as "unnecessary" and "duplicative." 140 Cong. Rec. H3864 (Rep.Schroeder) (explaining the DOD's position). The DOD also feared that withholding funds from universities could be potentially harmful to defense research initiatives. Id. But the House voted for the amendment by a vote of 271 to 126. Id. at H3865. Several months later the Senate approved the defense spending appropriations bill, including Representative Solomon's amendment, and the "Solomon Amendment" ultimately became law.

C. Subsequent Amendments and Regulatory Interpretations

In 1997 Congress amended the Solomon Amendment by expanding its penalty to include, in addition to DOD funds, funds administered by other federal agencies, including the Departments of Transportation,⁴ Labor, Health and Human Services, and Education.⁵ Omnibus Consolidated Appropriations Act, 1997, Pub.L. No. 104-208, § 514(b), 110 Stat. 3009-270 (1996). This amendment was recodified in another amendment in 1999. National Defense Authorization Act for Fiscal Year 2000, Pub.L. No. 106-65, § 549, 113 Stat. 512, 609-11 (1999). DOD regulations have clarified this expansion, penalizing an offending "subelement" of a college or university (i.e., a law school) that prohibits or effectively prevents military recruiting with the loss of federal funding from all of the federal agencies identified in the statute, while withholding from the offending subelement's parent institution only DOD funds. 32 C.F.R. § 216.3(b)(1).

The 1999 amendment also codified exceptions to the Solomon Amendment's penalties for schools that (1) have ceased an offending policy or practice, or (2) have a longstanding religious-based policy of pacifism. § 549, 113 Stat. at 610(c) (codified at 10 U.S.C. § 983(c)). DOD regulations subsequently added a third exception for schools that provide military recruiters a degree of access equal to that provided to other recruiters. 32 C.F.R. § 216.4(c).

Following the 1999 amendment, the DOD enforced the Solomon Amendment consistent with its terms. Only schools whose policies or practices "prohibit [ed], or in effect prevent[ed]," military representatives "from gaining entry to campuses, or access to...