Expressive association and the ideal of the university in the Solomon amendment litigation

In this article, Professors Wolff and Koppelman offer a critical analysis of the free speech claims that were asserted by the law schools and law faculty that sought to challenge the Solomon Amendment. Solomon is a federal statute that requires law schools to grant full and equal access to military recruiters during the student interview season. The military discriminates against gay men and lesbians under its Dont Ask, Dont Tell policy, and the law professors claimed a right to exclude the military under the First Amendment doctrine of expressive association, arguing that the presence of discriminatory recruiters would interfere with the ability of faculty to express their own message of inclusion toward their gay students. Those claims were ultimately rejected by the Supreme Court in Rumsfeld v. FAIR. Wolff and Koppelman argue that the law professors' litigation efforts, though well intentioned, were deeply misguided, seeking to extend a recent and aberrational decision in the law of expressive association to unsustainable lengths and, in the process, offering a characterization of the manner in which faculty engage in their own expression that is inconsistent with the ideals that should govern institutions of higher learning.