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

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. …