Analogizing law schools to the Boy Scouts.

As I noted yesterday, the Third Circuit relied on Boy Scouts v. Dale as it barred the enforcement of the Solomon Amendment. (The Solomon Amendment withholds funding from universities that don't give military recruiters the same access to campus facilities given to other recruiters.) It was ironic that a precedent that recognized a right of association permitting discrimination against gay persons provided the basis for saying that law schools had a right of association permitting them to exclude an employer that discriminated against gay persons. I've been reading the Third Circuit's long opinion today, trying to see how plausible the analogy really is. The court characterizes law schools as "expressive associations," then determines that the Solomon Amendment significantly affects the law schools' expression. The court writes -- there a link to the case here -- analogizing law schools' self-expression to the Boy Scouts:

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."

What concerns me about this analogy is the idea that "law schools endeavor to 'inculcate' their students with their chosen values." The Boy Scouts have decided to commit to a particular moral code and devote themselves to instilling it. Do law schools do the same thing? Aren't we devoted to empowering students by teaching legal skills and to fostering the expression of a diverse array of viewpoints with respect to issues that are subject to reasonable, professional debate? The law schools argue that they express themselves through modeling nondiscriminatory values. Having to accept a discriminatory recruiter on an equal basis with other recruiters, they say, interferes with their expression. That seems to me to go beyond Dale. The law school isn't chosing who will speak for them, while the Boy Scouts were choosing who will hold their leadership positions. We don't perceive the recruiters as speaking for the law school. That doesn't mean I think the law schools shouldn't win this one, but I do think there are some key differences from Dale.