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The Third Circuit of UnSolomonic Wisdom, or I'm With Althouse on This One

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."

(emphasis added) The Third Circuit judges are off their trolley if they actually believe this last sentence. Let me tell you from experience, there's nary a notice out of Career Services here that doesn't shout loud and clear--in ALL CAPITALS, in the case of our on-line recruiting site last year--that Columbia doesn't think that this is acceptable behavior. We received an email from our Dean last year pointing this out explicitly. And of course, anti-Solomon signs put up by student groups outnumbered pro-Solomon posters by about thirty-thousand reams to zero. If the Third Circuit thinks that Solomon was somehow gagging some of the most expressive people in America, it has a highly inflated view of government power. And anyone who thinks that Columbia, Solomon or no, supports even a shadow of Don't Ask, Don't Tell is playing the willful ignorance game. That last sentence is jurisprudence as a bad joke.

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.

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Listed below are links to weblogs that reference The Third Circuit of UnSolomonic Wisdom, or I'm With Althouse on This One:

» Solomon Again from De Novo
The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others... [Read More]

» Solomon Again from De Novo
The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others... [Read More]

» Solomon Again from De Novo
The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others... [Read More]

» Dale v Solomon from Crescat Sententia
I have not blogged about the Third Circuit decision on the Solomon Amendment, finding that the Solomon Amendment is unconstitutional as applied against law schools that wish to express a message by keeping military recruiters from using the law schools... [Read More]

» Dale v Solomon from Crescat Sententia
I have not blogged about the Third Circuit decision on the Solomon Amendment, finding that the Solomon Amendment is unconstitutional as applied against law schools that wish to express a message by keeping military recruiters from using the law schools... [Read More]

» Dale v Solomon [Updated Three Times] from Crescat Sententia
I have not blogged about the Third Circuit decision on the Solomon Amendment, finding that the Solomon Amendment is unconstitutional as applied against law schools that wish to express a message by keeping military recruiters from using the law schools... [Read More]

» Solomon Again from De Novo
The Third Circuit's decision to overturn Congressional legislation barring federal funding to schools that refuse military recruiters (past post on this topic) is being criticized on multiple grounds by several bloggers. Some of these are valid; others... [Read More]

Comments

California (with 190,000 lawyers) does not require an ABA acredited law school education. In fact, they don't require a law school education at all. Is it ok for California with the you-can-establish-an-alternative-private-organization-that-shares-your-values-theory to decide that schools may (the permissive may) ban recruitment by organizations that discriminate? The point here isn't that JAG is banned; it's that a special exception to the ABA regulations had to be imposed by federal law because JAG does discriminate. Granted the feds used an incentive scheme pulling funding, but the result is the same. A violation of ABA regulations required by federal law for just one group. The Solomon Amendment doesn't say that if you restrict recruiting by any organization that discriminates on the basis of sexual orientation we will pull your funding. I guess we can ban the Alliance Defense Fund but not JAG. Since lawyers are licensed by the state, it is not unforseeable that some states will decide that they will not recognise acceditation from schools that allow discriminatory organizations to recruit. What do we do then? This is the wrong place for the Federal Government to use its purse strings to control Law Schools. I think the real question is does Solomon implicate the 10th Amendment; especially since sexual orientation has not (yet) been included among the protected classes. I wonder whether the Federal Government should not be involved in the operations of Law Schools at all.
Why does enjoying the benefits (indirectly, I suppose) of a state-sponsored monopoly justify a reduction in 1st Amdt. protections against compelled speech and association?

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