Solomon's choice:: The spending clause and First Amendment Rights in Forum for Academic & Institutional Rights v. Rumsfeld

The Solomon Amendment denies federal funding to institutions of higher education that interfere with military recruiting on campus. In Forum for Academic & Institutional Rights v. Rumsfeld, the United States Court of Appeals for the Third Circuit examined the constitutionality of the Solomon Amendment using traditional First Amendment analysis. The court applied strict scrutiny and held that it was reasonably likely that the Solomon Amendment impermissibly infringed the First Amendment rights of an association of law schools and law faculty. This Note argues that the Solomon Amendment is a valid exercise of Congress's constitutionally-mandated duties to spend for the general welfare and to raise and support an army. Courts have not applied traditional First Amendment analysis-subjecting certain types of intrusions to strict scrutiny-to exercises of the spending power that implicate First Amendment rights. Instead, the proper analytical framework is the four-pronged test from South Dakota v. Dole and the unconstitutional conditions doctrine. Under this framework, the Supreme Court should reverse the Third Circuit's decision and hold that the Solomon Amendment is a valid exercise of the spending power because the Solomon Amendment passes the Dole test and does not impose an unconstitutional condition on recipients.