The Solomon Amendment, Expressive Associations, and Public Employment

There has been a lot of anticipation leading up to the Supreme Court's arguments this coming Tuesday concerning the constitutionality of the Solomon Amendment in the case of Rumsfeld v. F.A.I.R. As many of you know, the Solomon Amendment conditions the provision of certain federal education funds on an institution of higher education's willingness to allow military recruiters to not only recruit on campus, but to provide the military with the same career placement resources as it provides other employers.  Because of the military's current policy on homosexuals, a number of law schools have sought to protest the military's stance on homosexuals by disallowing military recruiters on campus.  The question for the Supreme Court will be whether the Solomon Amendment violates the First Amendment rights of these law schools.  For an excellent on-going debate between Dean Daniel Polsby (George Mason) and William Eskridge (Yale) concerning the constitutionality of the Solomon Amendment, check out the ACSBlog).

The FAIR case is also about expressive associations because opponents of the Solomon Amendment have argued that, like the Boy Scouts in the Dale case, the law schools, as private associations, should be able choose the message they wish to convey to the public through with whom they choose to voluntarily associate.  In other words, these law schools do not want to be seen as endorsing the military's "Don't ask, don't tell" policy regarding homosexuals.

So, Paul, please explain to me the much promised public employment angle? Well, if the law school is a public law school, the question becomes whether government institutions also have First Amendment rights to expressive association.  If so, it might be easier for a government institution in its employer capacity to discharge employees whose very employment conveys an unpopular or controversial message to the public at large.  This would be particularly true where the public employer hires someone to be the "public face" of the employer. 

On the other hand, if government institutions do not have rights to expressive association (because, as one theory goes, the Bill of Rights only provides rights to the governed rather than to the governing), it would seem to mean that in this post-Lawrence world that public employers would even have less justification to interfere with the private and personal lives of their employees.  For instance, without expressive association rights to rely on, a government employer could run afoul of a public employee's right to decisional non-interference in private affairs (as espoused in Lawrence) unless it had a legitimate and substantial justification for so interfering.  My larger point is that in the absence of rights of expressive association, public employers may have a harder time discharging employee based on the activities these employees decide to undertake on their own time.

For further ruminations on this point regarding the future of public employee privacy rights, check out the abstract and, if the spirit moves you, download my most recent article on the impact of Lawrence v. Texas on public employee privacy rights at: http://ssrn.com/abstract=675842.

Posted by: Paul M. Secunda