I. Constitutional Law: E. Freedom of Association

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Freedom of Expressive Association--Campus Access for Military Recruiters.--Every fall, law schools open their doors to employers intent upon cherry-picking the best and brightest from the second-year classes. A courtship process ensues, facilitated by law schools, during which employers seek to convey their desirability to applicants through receptions, mailings, small gifts, off-campus interviews in hotels, and word-of-mouth. (1) It is a peculiar job-recruiting ceremony, unique to law schools and their vulnerable, inexperienced students. At the end of the process, though many students receive job offers, a large number find themselves with jobs of a less idealistic and public-spirited bent than what they had imagined upon entering law school; (2) somehow, the process strongly influences the result. (3) Last Term, in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), (4) the Supreme Court upheld the Solomon Amendment against a First Amendment challenge, deciding en route that Congress would not violate the First Amendment if it were to force law schools to extend the same privileges to military recruiters as they extend to any other employer invited onto campus for recruiting purposes. If it is any indication of what is to come from the Roberts Court, this opinion establishes a worrisome precedent. Doctrinally, the opinion cuts back First Amendment protections on a number of fronts. More generally, it exhibits a marked indifference to the subtle forms that expression can take, buttressed by an ideologically biased notion of a law school's proper role in the legal world.

Prior to this case, almost every American law school denied access to its career services to any employer who discriminated on the basis of sexual orientation. (5) Many law schools thus gave limited access, if any, to the U.S. military, owing to the military's explicit policy against employing people who have exhibited homosexual conduct. (6) Eventually Congress took note of the law schools' exclusionary policies, and in 1994 Representatives Gerald Solomon and Richard Pombo cosponsored a bill, later named the Solomon Amendment, (7) which conditioned schools' receipt of federal funds (8) upon allowing military recruiters' entry onto campus. (9) Most law schools subsequently chose to allow military recruiters onto their campuses or adjacent undergraduate campuses, while still denying them other services offered to nondiscriminating employers. (10) The Department of Defense (DOD) deemed this practice compliant, (11) but after September 11, 2001, it assumed a new informal policy, according to which law schools were required to "provide military recruiters access to students equal in quality and scope to that provided to other recruiters." (12)

An organization committed to vindicating the rights of law schools, the Forum for Academic and Institutional Rights (FAIR), responded by bringing suit against the DOD in New Jersey federal court. (13) FAIR alleged that the Solomon Amendment as well as the DOD's informal policy were unconstitutional conditions because they conditioned funding upon the law schools' renunciation of their rights to free expression and association. (14) FAIR moved for a preliminary injunction against enforcement of the statute, but the district court denied the motion, holding that FAIR was unlikely to succeed in proving that the Solomon Amendment was unconstitutional as applied. (15) The court saw neither sufficient expressive conduct in the schools' exclusion of recruiters nor a sufficient intrusion by military recruiters upon the schools' organizational integrity. (16)

A divided panel of the Third Circuit reversed, holding that on its face (17) the Solomon Amendment abridged freedom of both expression and association. (18) The court recognized that the Solomon Amendment did not force law schools to accept military recruiters as school members but still found that the recruiters' intrusion significantly interfered with the law schools' ability to express their viewpoints. …