I. Constitutional Law: E. Freedom of Association

Harvard Law Review, November 2006 | Go to article overview
Save to active project

I. Constitutional Law: E. Freedom of Association


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

I. Constitutional Law: E. Freedom of Association
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.