The Third Circuit just struck down the Solomon Amendment, the law which stated that any law school not allowing military recruiters would not receive federal funding. I think the two justices in the majority were a bit high on the cutesy value of their decision. Prof. Althouse pulls out the most risible bit of the decision:

Just as the Boy Scouts believed that "homosexual conduct is inconsistent with the Scout Oath," the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that "homosexuals do not provide a role model consistent with the expectations of Scouting families," id., the law schools maintain that military recruiters engaging in exclusionary hiring "do not provide a role model consistent with the expectations of," id., their students and the legal community. Just as the Boy Scouts endeavored to "inculcate [youth] with the Boy Scouts' values--both expressively and by example," the law schools endeavor to "inculcate" their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. And just as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."

But Althouse makes a more important point, and one which has bothered me ever since I read the decision. Why is a law school like the Boy Scouts? The Boy Scouts exist as a private organization to foster certain civic and moral ideals. But that's it: there is no Scout badge that is the requirement for professional accreditation, nor does the state support Unauthorized Practice of Traditional Morality statutes. And if you want to practice a different set of values, there's always the possibility of setting up an organization to rival the Scouts.

None of this is true with regards to law schools. However "private" an institution like Columbia might be, it still earns its bread and butter off of what is nearly a state-sponsored monopoly: most states still require law school to practice law, and that school will normally have to meet the standards of the ABA. If you want to go to an ABA-law school, it cannot descriminate on the basis of sexual orientation. (See The American Bar Association, Standards and Rules of Procedure for Approval of Law Schools, Standard 210.) Unlike the Boy Scouts, you can't just go out and set up your own law school by different standards, at least if you want your students to have easy access to the profession.

The Third Circuit has presented law schools as a monolithic block of opinion: after all, the Solomon Amendment is inconsistent with "their students and the legal community." (Any JAG attorneys--presumably members of the legal community--religious lawyers or scholars, or anyone else who may be pro-Solomon, we can safely presume, don't count.) And I suppose that given the recent studies showing the overwhelmingly liberal tendencies of faculty in higher education, perhaps they're not entirely unjustified. But if any opinions are being stifled by the Third Circuit, its those of the minority of students who do back the Solomon Law, or merely don't care enough about it to find it worth losing access to military recruiters. After all, those students can't go join a law school which backs their own views--whysoever they may hold them--so long as the ABA holds sway. In a very real sense, they are actually powerless to go elsewhere.

Instead the Third Circuit goes along with the idea that law schools are being forced to express something. They're not--like the Boy Scouts were--being forced to elevate pro-Solomon scholars to their leadership. They're not even being told when recruiters come they must be allowed on campus without comment: indeed, the schools use every form of disapproval short of special WARNING: SUSPECTED HOMOPHOBE t-shirts. (And now that I've raised the idea, it'll probably be used next year.) They're merely saying that recruiters must be given access. Of course, there are students who, for whatever reason, think that the Solomon Amendment might not be such a bad idea. But if they do exist, they'd better shut up about it. Don't you know? Their expectations are not part of the law school.