¹ Forum for Academic and Institutional Rights [FAIR] v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004); rev'd, 547 U.S. 47 (2006)Google Scholar.

² Burt v. Rumsfeld, 354 F. Supp. 2d 156 (D. Conn. 2005)Google Scholar.

³ Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar.

⁴ The facts that follow are drawn largely from the summary provided in Burt v. Rumsfeld, 354 F. Supp. 2d 156 (D. Conn. 2005)Google Scholar.

⁵ See FAIR, 390 F.3d at 224–25 (recounting AALS's expansion of its nondiscrimination policy).

⁶ The current policy, colloquially known as “Don't Ask, Don't Tell,” was enacted by statute in 1993 and took effect in early 1994. See 10 U.S.C. sec. 654, “Policy Concerning Homosexuality in the Military.” The policy imposes unique and extraordinarily burdensome restrictions on speech and conduct upon gay, lesbian, and bisexual servicemembers, effectively forcing them to remain closeted and celibate, and to affect a straight identity, as the condition of military service. See generally Wolff, Tobias Barrington, “Political Representation and Accountability under Don't Ask, Don't Tell,” Iowa Law Review 89 (2004): 1633Google Scholar (describing operation of policy). Prior to Don't Ask, Don't Tell, the military maintained a blanket ban on service by gay, lesbian, and bisexual soldiers, a policy that it imposed through executive and administrative command rather than statutory mandate. In practice, Don't Ask, Don't Tell has operated in a manner very similar to the blanket ban that preceded it; indeed, the rate at which gay servicemembers are discharged has gone up under Don't Ask, Don't Tell, despite President Clinton's promise at the time of its enactment that the new policy would create a space within which gay men and lesbians could serve. See generally Servicemembers Legal Defense Network, “Ten Year Timeline of ‘Don't Ask, Don't Tell’,” available at http://www.sldn.org/templates/dadt/record.html?section=183&record=1449 (last visited August 9, 2007)Google Scholar.

⁷ This essay is not the place to take up the unresolved question of what actual impact the law school policies might have had upon the ability of the military to satisfy its recruitment goals in the various Judge Advocate General's Corps, but that threat is easily overstated. The common shorthand description that one often hears of the manner in which law schools sought to enforce their nondiscrimination policies—“The law schools were trying to exclude military recruiters”—can easily give the false impression that JAG was being prevented from interviewing law students altogether. The reality is far different.

No law school ever forbade its students to interview with JAG, and most permitted JAG to participate in some fashion in the normal interview season. Generally, schools merely requested that JAG conduct their interviews off campus and contact interested students without the assistance of the law school placement office. See Brief for the Respondents, Rumsfeld v. FAIR, No. 04-1152 (September 21, 2005)Google Scholar (hereinafter FAIR Main Brief), at 7–8 (setting forth undisputed account of accommodations requested by objecting law schools). Such policies imposed inconvenience on JAG recruiters, to be sure, and may have had some marginal impact on JAG's overall recruitment efforts. But the number of law students who interview with JAG recruiters is very small at most institutions; and law schools often do not offer a very affirming or friendly atmosphere for those interested in the military, for reasons having as much to do with class bias as with political views. This is particularly the case at rich and selective private institutions. As a consequence, those students who do wish to interview with JAG are usually a highly motivated and self-directed group. While they may find it less pleasant and less convenient to interview under the conditions that the law schools sought to impose, law students who are interested in careers as military lawyers are likely to find their way to JAG even if they must overcome administrative inconvenience to do so.

⁸ The Solomon Amendment currently provides as follows (10 U.S.C. sec 983[b]):

1. (1)

   (1) the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer; or

2. (2)

   (2) access by military recruiters for purposes of military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at that institution (or any subelement of that institution):

   1. (A)

      (A) Names, addresses, and telephone listings.

   2. (B)

      (B) Date and place of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student.

⁹ See 61 Fed.Reg. 7739, 7740 (February 29, 1996)Google Scholar. Law schools do not typically receive a large amount of federal funding.

¹⁰ 10 U.S.C. sec. 983(c)(2), as modified by Pub.L. No. 106-65, sec. 549(a)(1) (1999)Google Scholar; Defense Federal Acquisition Regulation Supplement: Institutions of Higher Education, 65 Fed.Reg. 2056 (January 13, 2000)Google Scholar. The effect of this redefinition was that a violation in any part of the university would put federal funding for the entire university in jeopardy. 48 C.F.R. sec. 252.209-7005.

¹¹ Judge Richard Posner's criticism of the depth of the law schools' commitment is unfair in this respect. In describing the choice that law schools made to bow to the Solomon Amendment, Posner writes, “The law school merely wants to have its cake and eat it—and who doesn't? It is not an edifying desire—it is embarrassing for a law school to have to tell its irate homosexual students that it loves them but loves federal money even more—but the reality is that universities nowadays are giant corporations and behave accordingly, whatever their pretensions.” Posner, Richard A., “A Note on Rumsfeld v. FAIR and the Legal Academy,” Supreme Court Review 2006 (2007): 47, 52CrossRefGoogle Scholar. When law schools had the option of refusing their own federal funds as the price of enforcing their antidiscrimination policies, one could legitimately use their willingness to take that step as a measure of their commitment. But when Congress amended Solomon to threaten the wholesale destruction of other programs throughout their universities as the price of law schools' noncompliance, any semblance of a true “choice” was eliminated.

¹² See notes 1 and 2 above. The University of Pennsylvania Law School also brought a Solomon suit, which placed much greater emphasis on a claim that the institution was actually in compliance with the statutory mandate and asserted constitutional claims only in a subsidiary posture. That suit was partially dismissed at the district court level (for lack of standing and failure to state a cause of action on respective counts), and was then superseded by the decision of the Supreme Court before it produced any substantial constitutional ruling. See Burbank v. Rumsfeld, 2004 WL 1925532 (E.D. Pa., August 26, 2004)Google Scholar.

Professor Wolff joined the faculty of the University of Pennsylvania Law School after the termination of this suit (and after the Supreme Court's decision in FAIR) and played no role in that litigation.

¹³ Boy Scouts of America v. Dale, 530 U.S. 640 (2000)Google Scholar.

¹⁴ Carpenter, Dale, “Expressive Association and Anti-Discrimination Law after Dale: A Tripartite Approach,” Minnesota Law Review 85 (2001): 1515, 1517Google Scholar.

¹⁵ NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)Google Scholar (Harlan, J.).

¹⁶ Id. at 460.

¹⁷ Id. at 463–66.

¹⁸ At least one court has issued such a holding in a related situation. In Invisible Empire of the Knights of the Ku Klux Klan v. Mayor et al. of Thurmont, 700 F. Supp. 281, 289–91 (D. Md. 1988)Google Scholar, a district court found that the KKK could not be denied a permit to march on a town's public streets because of the group's objection to a demand by the mayor that they comply with a nondiscrimination condition in their choice of whom to include as marchers. (No issue of membership in the KKK chapter itself was presented.) From the discussion in the opinion, it appears that Black and Jewish protesters would have marched with the KKK, if allowed, in order to spoil their message. Id. at 289. Prefiguring the result in Hurley, the district court essentially treated the KKK's choice of whom to include in a parade as a question of pure expression and invalidated the attempt to mandate the inclusion of unwanted members. Id. at 290–91. See Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)Google Scholar (holding that a private parade organizer has a First Amendment right to exercise control over the groups that will march under their own banners in the parade, as that feature of the parade's composition itself constitutes protected expression).

¹⁹ Alabama ex rel. Patterson, 357 U.S. at 462.

²⁰ Roberts v. United States Jaycees, 468 U.S. 609 (1984)Google Scholar.

²¹ Id. at 623.

²² Id. (emphasis added).

²³ In one of the key passages of the Jaycees decision (id. at 627–28), the Court explained:

²⁴ Id.

²⁵ See, e.g., Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987)Google Scholar; and New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988)Google Scholar.

²⁶ Boy Scouts of America v. Dale, 160 N.J. 562, 613, 734 A.2d 1196, 1223–1224 (1999)Google Scholar (internal quotation marks omitted), quoted in Dale, 530 U.S. at 647.

²⁷ Dale, 160 N.J. at 615, 734 A.2d at 1225, quoting Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987)Google Scholar; quoted in Dale, 530 U.S. at 647.

²⁸ Dale, 530 U.S. at 650.

²⁹ Id.

³⁰ Id. at 653.

³¹ Id.

³² This analysis of the Court's opinion is developed in detail in Koppelman, Andrew, “Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination,” Cardozo Law Review 23 (2002): 1819Google Scholar. For a more detailed analysis of the doctrinal confusion introduced by Dale, see McGowan, David, “Making Sense of Dale,” Constitutional Commentary 18 (2001): 121Google Scholar.

³³ See, e.g., Pacific Gas & Elec. v. Public Utils. Comm'n, 475 U.S. 1 (1986)Google Scholar (empowering PG&E to resist a California law requiring it to bundle environmental literature with bills mailed to customers during some months on the grounds that the regulation forced the corporation to facilitate speech that was not of its choosing). For an exposition of some of the contours of the compelled speech doctrine, see Wolff, Tobias Barrington, “Compelled Affirmations, Free Speech, and the U.S. Military's Don't Ask, Don't Tell Policy,” Brooklyn Law Review 63 (1997): 1141, 1193–1201Google Scholar.

³⁴ The implications of Dale for compelled speech doctrine are of great importance, but they also raise a distinct and complex set of issues and must remain the subject of another essay. See Koppelman, “Signs of the Times.” Having identified the issue, we will focus only on expressive association doctrine from this point forward.

³⁵ Recreational Developments of Phoenix v. City of Phoenix, 220 F. Supp. 1054 (D. Ariz. 2002)Google Scholar.

³⁶ Gun Owners' Action League, Inc. v. Swift, 284 F.3d 198 (1st Cir. 2002)Google Scholar.

³⁷ City of Shoreline v. Club for Free Speech Rights, 36 P.3d 1058 (2001)Google Scholar.

³⁸ Central Texas Nudists v. County of Travis, 2000 WL 1784344 (Tex. App. Austin 2000)Google Scholar.

³⁹ Pi Lambda Phi Fraternity v. University of Pittsburgh, 229 F.3d 435 (2000)Google Scholar.

⁴⁰ Hyman v. City of Louisville, 132 F. Supp. 2d 528 (W.D. Ky. 2001)Google Scholar.

⁴¹ Chicago Council of Boy Scouts of America v. City of Chicago, 748 N.E.2d 759 (Ill. 1st Dist. 2001)Google Scholar, appeal denied, 763 N.E. 2d 316 (Ill. 2001); Boy Scouts of America v. D.C. Commission on Human Rights, 809 A.2d 1192 (D.C. 2002)Google Scholar. But even the Scouts have gotten only limited mileage from Dale. The City of Berkeley was not prevented from revoking the Scouts' privilege of docking their boats rent-free in the city's marina. See Evans v. City of Berkeley, 129 P.2d 394 (Cal.), cert. denied, 127 S. Ct. 434 (2006)Google Scholar. Nor was the state of Connecticut barred from excluding the Scouts from its state employee's charitable campaign. See Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir. 2003)Google Scholar, cert. denied, 541 U.S. 903 (2004).

⁴² Donaldson v. Farrakhan, 762 N.E. 2d 835 (Mass. 2002)Google Scholar. The internal autonomy of religious groups is a well-established doctrine which has been held to survive the holding of Employment Division v. Smith, 494 U.S. 872 (1990)Google Scholar, that (as a general matter) the free exercise clause does not authorize the courts to carve out exemptions to generally applicable laws when such laws burden religious activities. See Combs v. Central Texas Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999)Google Scholar; and E.E.O.C. v. Catholic University of America, 83 F.3d 455 (D.C. Cir. 1996)Google Scholar.

⁴³ Forum for Academic and Institutional Rights [FAIR] v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004)Google Scholar; rev'd, 547 U.S. 47 (2006).

⁴⁴ In recent years, federal courts have been considering several challenges brought by Christian student organizations seeking exemptions from their institutions' antidiscrimination policies. In one such challenge, decided following the Supreme Court's decision in FAIR, the Seventh Circuit provided the organization with the exemption that it sought. See Christian Legal Soc'y v. Walker, 453 F.3d 853 (7th Cir. 2006)Google Scholar. The court in that case appears to have employed a much more robust form of factual analysis than would be called for under the “Dale deference” doctrine. In addition, the court concluded that the defendant sought to apply its policy to the student group because of its disapproval of the group's viewpoint—an assertion that, if true, would bring the holding of the case squarely within the ambit of Jaycees, with no need even to advert to the more expansive features of Dale. See Jaycees, 468 U.S. at 623–24.

⁴⁵ See U.S. Junior Chamber Jaycees, http://www.usjaycees.org/learn_more.htm (last visited July 4, 2007)Google Scholar.

⁴⁶ Jaycees, 468 U.S. at 625–26.

⁴⁷ Id. at 629–30.

⁴⁸ The law professors emphasized this distinction and explicitly invited the Court to extend Dale beyond the context of membership interference. See, e.g., FAIR Main Brief, supra note 7, at 17: “The freedom of association is not limited to circumstances in which the government interferes with an organization's internal composition, but extends to the full range of causes an expressive organization may choose to embrace or reject.” See also id. at 31–32 (elaborating on this argument).

⁴⁹ We will sometimes use the shorthand “LGBT” to refer to students who identify as lesbian, gay, bisexual, or transgendered. Don't Ask, Don't Tell itself does not deal directly with gender identity or the treatment of transgendered individuals, though the military treats transgendered people with swift and reliable hostility through other policies.

⁵⁰ FAIR Main Brief, supra note 7, at 14. See also id.: “Faculty attest to student expressions of cynicism and cries of hypocrisy when the lessons turn to topics such as equality, human dignity, and other underpinnings of a just society. They feel inhibited to preach about integrity, adhering to principle, and fighting for a worthy cause” (citations omitted). As a side note, one might question whether “preach” is a felicitous term to use in describing the pedagogical responsibility of a law professor offering a lesson.

⁵¹ Under Dale, it was arguably the case that the law professors were required only to show that the inclusion of the military recruiters “significantly affect[ed]” their ability to propound their message, even if it did not undermine the message altogether. This is the standard that the Third Circuit purported to apply—see FAIR v. Rumsfeld, 390 F.3d 219, 231–34 (3d Cir. 2003)Google Scholar—and FAIR adopted the Third Circuit's analysis wholesale in its briefs. See FAIR Main Brief, supra note 7, at 30. However, any such distinctions are rendered irrelevant by the Third Circuit's further conclusion that it was required to apply “Dale deference” to any claim that FAIR made of interference with its expression, whatever the magnitude of that claimed interference. See FAIR, 390 F.3d at 233–34. As Justice David Souter once wrote in a different context, “The sequence of the Court's positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court's efforts to justify its holding.” Alden v. Maine, 527 U.S. 706, 761 (1999)Google Scholar (Souter, J., dissenting).

Of course, had the Supreme Court accepted the invitation to place substantial weight on the lesser “significantly affects” standard, the results would have been dire. Although the more permissive standard might have made the plaintiffs' claims somewhat more plausible on the facts (though not much), it would also have resulted in a change in the law—the application of even more expansive “Dale deference” to every entity that engages in any form of expression—that would have been all the more breathtaking and catastrophic in scope.

⁵² Focusing primarily on the compelled speech argument, Judge Posner expresses his skepticism on this point in the following terms:

Posner, “A Note on Rumsfeld v. FAIR and the Legal Academy,” 50–51.

⁵³ Title IX, like the Solomon Amendment, operates as a condition upon the receipt of federal funds, and any institution seeking to pursue such a claim might have to grapple with the particular set of requirements associated with spending clause doctrine (U.S. Constitution, Article I, section 8). But the very fact that Title IX would be subject to the threat of a robust First Amendment defense in such cases would constitute a dramatic change. In Grove City College v. Bell, 465 U.S. 555 (1984)Google Scholar, in contrast, the Court avoided any First Amendment analysis by concluding that individual recipients of federal funds were free to decline them, presenting no threat to First Amendment values. The entirety of the Court's analysis is contained in the following passage:

Id. at 575–76. This dismissive holding clearly could not survive a robust application of Dale, and it has questionable continuing vitality in any event due to the passage by Congress of the Civil Rights Restoration Act of 1987, 20 U.S.C. sec. 1987, which overruled Grove City's interpretation of Title IX and threatened the withdrawal of federal funds from entire educational institutions when any component or program of the institution engages in discrimination, resulting in significantly greater coercive pressure.

⁵⁴ The Supreme Court dismissed an argument along these lines out of hand in Runyon v. McCrary, 427 U.S. 160 (1976)Google Scholar, where it upheld the constitutionality of the Civil Rights Act as applied to a private school that wished to remain all White and teach principles of segregation and White supremacy. While “it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable,” the Court held, “it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle.” Id. at 175–76. Runyon was decided at a time when the Court's expressive association doctrine was still at an early stage of development, and the brevity of its treatment of the issue in an opinion that was primarily focused on other matters has meant that Runyon's impact in this arena has been limited. Nonetheless, it is difficult to imagine the Court overruling the result in that case.

Members of the Harvard Law School faculty raised a similar set of concerns about the impact of FAIR's arguments on antidiscrimination laws in an amicus curiae brief, urging the Supreme Court to confine its ruling to statutory rather than constitutional grounds. See Rumsfeld v. FAIR, Brief of Professors William Alford et al., 2006 WL 2367595Google Scholar.

⁵⁵ FAIR's response to this threat was to argue that, as a matter of constitutional policy, antidiscrimination laws should continue to prevail even in the face of robust Dale-style First Amendment arguments, because discrimination suffers from particular disfavor under the Constitution. See FAIR Main Brief, supra note 7, at 34–35. Of course, this argument did not prevail in the Dale case itself.

⁵⁶ Rumsfeld v. Forum for Academic and Institutional Rights [FAIR], 547 U.S. 47, 126 S. Ct. 1297, 1307 (2006)Google Scholar.

⁵⁷ Id. at 1312, quoting Dale, 530 U.S. at 648 (which in turn was quoting Jaycees, 468 U.S. at 623).

⁵⁸ Rumsfeld v. FAIR, 126 S. Ct. at 1307–10.

⁵⁹ This unsatisfying explanation leaves in place Dale's nasty suggestion that the inclusion of a gay member is inherently expressive (and hence raises First Amendment problems that are particular to gay people), but at least the Court's opinion did not give any further credence to that idea.

⁶⁰ See, e.g., Cohen v. California, 403 U.S. 15 (1971)Google Scholar (holding that political protestors retain the right to choose their mode of expression, even when they use offensive or tasteless terms to do so); and Hustler Magazine v. Falwell, 485 U.S. 46 (1988)Google Scholar (rejecting “outrageousness” exception to protected status of political and social commentary). For an extended analysis of the potential relationship between the identity of a speaker and the meaning of the message that the speaker conveys, see Wolff, “Political Representation and Accountability under Don't Ask, Don't Tell.”

⁶¹ Palmore v. Sidoti, 466 U.S. 429 (1984)Google Scholar.

⁶² Jaycees, 468 U.S. at 627–28 (emphasis added).

⁶³ Shelley v. Kraemer, 334 U.S. 1 (1948)Google Scholar.

⁶⁴ Henkin, Louis, “Shelley v. Kraemer: Notes for a Revised Opinion,” University of Pennsylvania Law Review 110 (1962): 473, 481CrossRefGoogle Scholar.

Professor Charles Black offered another much-noted account of state action, this one more trenchant and polemical, that takes similar aim at any effort to define state action with bright, formal analytical lines:

Black, Charles L. Jr., “Foreword: ‘State Action,’ Equal Protection, and California's Proposition 14,” Harvard Law Review 81 (1967): 69, 90–91CrossRefGoogle Scholar.

⁶⁵ See also Reitman v. Mulkey, 387 U.S. 369 (1967)Google Scholar (striking down a facially neutral California law that authorized acts of private discrimination in housing sales because the law involved the state too intimately in the validation and encouragement of that discrimination).

⁶⁶ Dale, 530 U.S. at 653.

⁶⁷ Rumsfeld v. FAIR, 126 S. Ct. at 1312 (quotation marks omitted).

⁶⁸ The University of Pennsylvania suit (supra note 12) was the only one that included students as parties and attempted to assert student rights. Tellingly, the district court found that “the students and the student organization are not the proper parties to bring the associational claim because the Law School faculty here sets the rules of association by resolution,” and, “[s]imilarly, the claim of injury to the ability to convey the Law School policy of anti-discrimination belongs to the faculty, not to the students or student group.” Burbank, 2004 WL 1925532, at *3.

⁶⁹ See FAIR Main Brief, supra note 7, at 1–5 (emphasizing introduction of government message into job fair); and id. at 33–35 (same). The lawyer for FAIR began his presentation to the Court by framing the issue in the following terms: “This case is not about whether military recruiters will be barred at the campus gates. Congress had a law on the books that guaranteed entry to campus, but that was not what Congress really wanted. So, it passed a new law. What Congress really wants is to squelch even the most symbolic elements of the law schools' resistance to disseminating the military's message, which is why it gave us the current version of the statute. The current version isolates for regulation the most communicative aspects of the law schools' resistance” (2005 WL 3387694, at 28–29).

⁷⁰ This characterization of the function of a university, and the discussion that follows, are influenced to some extent by the noted discussion of the philosopher Robert Paul Wolff in his 1969 volume on the subject. See Wolff, Robert Paul, The Ideal of the University (Boston, MA: Beacon Press, 1969)Google Scholar.

⁷¹ The tenure system was an innovation of the mid-twentieth century and came largely in response to vicious forms of recrimination that some academics faced for politically unpopular ideas during the Red Scare and McCarthy eras. See generally Jencks, Christopher and Riesman, David, The Academic Revolution (Garden City, NY: Doubleday, 1968)Google Scholar (discussing the evolution of the university in twentieth-century America).

⁷² Judge Posner does not contribute to the debate when he refers to the efforts of law schools to enforce antidiscrimination policies as themselves constituting “discrimination.” See Posner, “A Note on Rumsfeld v. FAIR and the Legal Academy,” 49: “All [the] largesse [of extra assistance from the placement office] is denied to military recruiters and other employers who do not promise not to discriminate against homosexuals. The law schools are discriminating against such recruiters.” To reduce the word “discriminate” to a thin, generic term for any form of differential treatment and then make the implicit suggestion that there is some parity between the military's abusive treatment of gay and lesbian servicemembers and the law schools' response to that abusive treatment seems almost willfully perverse.

⁷³ We therefore disagree with the license that Judge Posner implicitly extends to members of the legal academy to behave like “any other litigant” when they are parties to a lawsuit urging constitutional claims. In criticizing the statutory arguments made by the Harvard faculty in their amicus brief in the FAIR case, Judge Posner draws a contrast with the standards of behavior that might have applied to the Harvard faculty had they been acting as litigants rather than expert amici. He writes:

Posner, “A Note on Rumsfeld v. FAIR and the Legal Academy,” 52. There is a considerable distance between that which is legally or ethically permissible and that which is desirable or admirable. To suggest that law professors should not be held to a higher standard than “any other litigant” in the choice of arguments that they press as litigants, without regard for intellectual integrity or potential impact upon larger systemic values, is to embrace an unfortunate measure of cynicism about the norms of the profession. It is not only when members of the academy are “speaking ex cathedra” that those norms are important.

⁷⁴ When the Supreme Court decided to review the Third Circuit's decision in FAIR, Professor Wolff published an op-ed essay in which he levied criticisms similar to the ones developed in this essay. See Wolff, Tobias Barrington, “‘Don't Ask, Don't Tell’ Harms the Constitution, but So Does This Cure,” Los Angeles Times (May 15, 2005)Google Scholar. To the authors' knowledge, this was the only prominent public statement by a member of the academy generally identified as liberal or progressive expressing opposition to the arguments that were pressed in the Solomon cases, prior to the Supreme Court litigation itself.