The Market for Legal Education & Freedom of Association: Why the "Solomon Amendment" Is Constitutional and Law Schools Are Not Expressive Associations

By Morriss, Andrew P. | The William and Mary Bill of Rights Journal, December 2005 | Go to article overview

The Market for Legal Education & Freedom of Association: Why the "Solomon Amendment" Is Constitutional and Law Schools Are Not Expressive Associations


Morriss, Andrew P., The William and Mary Bill of Rights Journal


ABSTRACT

This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest in career services offices.

INTRODUCTION

This term the Supreme Court will consider whether Congress may constitutionally require law schools that accept federal funds (or that are part of universities which do so) to allow military recruiters the same access to the law schools' career services offices that the schools provide to other employers.1 The answer is straightforward: Yes. In Forum for Academic and Institutional Rights, Inc. v. Rumsfeld 2 (hereinafter "FAIR v. Rumsfeld"), a divided panel of the U.S. Court of Appeals for the Third Circuit held that the federal statute, known as the "Solomon Amendment,"3 that imposes this choice on universities violated the First Amendment rights of law schools. Some law schools wish to deny access to military recruiters because the Congressional "Don't Ask, Don't Tell" policy on openly homosexual members of the military violates the law schools' antidiscrimination policies.4 The Third Circuit's conclusion was incorrect and should be reversed.5

The purpose of this Article is to identify three problems with the Third Circuit panel's analysis in FAIR v. Rumsfeld - problems which should lead the Supreme Court to reverse the decision and uphold the Solomon Amendment.6 First, the Third Circuit improperly treated the law schools and law faculties as if they were independent entities entitled to assert associational freedom claims. They are not. Second, the Third Circuit undervalued the government's interest by failing to give sufficient deference to Congress's power to raise and support the armed forces.7 Proper deference to Congress's decision on how to recruit military lawyers changes the result. Third, the Third Circuit overvalued the law schools' and law faculties' interests by misunderstanding the nature of legal education and the impact of the Solomon Amendment on it. A correct understanding of these issues compels a result opposite to the one reached by the appeals court. However, any one of these grounds is sufficient to reverse the Third Circuit's opinion. Together they make a compelling case against FAIR.

Section I briefly discusses the background necessary for these legal arguments. The structure of the market for legal education is critical to the proper understanding of the associational status of law schools and to the appropriate weighing of the government's and law schools' interests. I therefore provide a brief summary of the relevant market characteristics. Relatively few of the details of the Solomon Amendment or the underlying "Don't Ask, Don't Tell" policy on homosexuality and the military are relevant to the constitutional issues. The Third Circuit opinion focused on irrelevant aspects of each, however, and so I briefly describe the constitutionally relevant aspects of both. Parts II-IV set out the three critiques of the Third Circuit's opinion listed above. Part V concludes.

I. LAW SCHOOLS, THE MILITARY'S POLICY ON HOMOSEXUALITY, AND THE SOLOMON AMENDMENT

The clash between the plaintiff law schools and law faculties and the military over the Solomon Amendment is well known and needs only to be briefly summarized to emphasize the points critical to the argument below. (I refer the reader to the multitude of law review articles8 and both parties' thorough factual sections in their briefs and other pleadings9 for a more complete account of the background. …

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

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 ...
Default project is now your active project.
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.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

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

The Market for Legal Education & Freedom of Association: Why the "Solomon Amendment" Is Constitutional and Law Schools Are Not Expressive Associations
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access 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

    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.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.