This case involves the Solomon Amendment, a federal law requiring that schools allow the military full access to recruiting on campus, even though the military does not comply with the schools' policies against aiding any employer who discriminates on the basis of sexual orientation. The Solomon Amendment punishes universities with a loss of federal funding if the university, or any individual component thereof, excludes military recruiters from campus. Because the Solomon Amendment puts the schools and their faculty in the position of violating their own policies regarding discrimination on the basis of sexual orientation, or risking millions of dollars in federal funding throughout the institution, a coalition of law schools came together as the Forum for Academic and Institutional Rights (FAIR) for the specific purpose of challenging this law. The plaintiffs argue that the Solomon Amendment violates their First Amendment rights to academic freedom, free speech, and freedom of association. (The Yale University faculty and University of Pennsylvania faculty have also brought individual cases making similar arguments, and other individual law schools are also considering filing cases in different circuits around the country. See below.)
On September 21, 2005 the AAUP filed its amicus brief in this case before the U.S. Supreme Court. The brief, written by Kathleen M. Sullivan, a constitutional law professor and former dean of Stanford Law School, argues that the current version of the Solomon Amendment interferes with the First Amendment rights of individual faculty academic freedom and the faculty’s collective academic governance. The brief further contends that by requiring equal, rather than adequate, access for military recruitment, the Solomon Amendment improperly discriminates based on the viewpoint of faculty. Lastly, the brief argues that by withdrawing federal funding from the entire university, the Solomon Amendment unconstitutionally penalizes protected speech. Read the amicus brief (pdf).
Update: On March 6, 2006, the Supreme Court issued a ruling in FAIR v. Rumsfeld, in which it held that Congress was free to impose direct requirements on law schools to accept military recruiters, and an offshoot of that freedom – conditioning receipt of funds upon the grant of such access – was not unconstitutional. The Court further concluded that the Solomon Amendment regulates conduct, not speech, and rejected the law schools’ argument that enforcing nondiscrimination policies by barring military recruiters from campus was a form of expression. Moreover, because the law schools were free to express discontent with the military’s “don’t ask, don’t tell” policy, the Court concluded that mandating that recruiters be allowed on campus was not a restriction on speech.