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 are more questionable.
Tony Rickey claims that the demands of ABA accreditation block students from attending schools that discriminate on the basis of sexual orientation, or that permit on-campus recruiting employers to do so. "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." While a quick read of Standard 210 gives that impression, one also should consider the ABA's actual application of it:
This Standard permits religious policies as to admission, retention, and employment only to the extent that they are protected by the United States Constitution. It is administered as if the First Amendment of the United States Constitution governs its application. [...] Interpretation 210-3: As long as a school complies with the requirements of Standard 210(e), the prohibition concerning sexual orientation does not require a religiously affiliated school to act inconsistently with the essential elements of its religious values and beliefs. [...] Interpretation 210-4: Standard 210(f) applies to all employers, including government agencies, to whom a school furnishes assistance and facilities for interviewing and other placement services. However, this Standard does not require a law school to implement its terms by excluding any employer unless that employer discriminates unlawfully.So Regent School of Law, the non-discrimination policy of which does not include sexual orientation, can prohibit "homosexual conduct" (as distinct from regular "premarital sex") without fear of losing its ABA accreditation. Students who support a gay-free learning environment and/or military can attend Regent or similar institutions.
Ann Althouse goes at distinguishing law schools from the Boy Scouts at a different angle:
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 choosing 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.Tony amplifies on this idea in his post, ridiculing the notion that Columbia doesn't express great disapproval of the military's discrimination. But then one could argue that the Boy Scouts are free to express great disapproval of homosexuality while still being required not to discriminate against gays.
Althouse's attempt to put scoutmasters in a more "speaking" role than recruiters is good, but flawed by the fact that the BSA specifically prohibits scoutmasters from talking about sexuality in any form. Dale wasn't arguing for the right to tell boys that he was a homosexual and that was OK; he was arguing for the right not to be discriminated against. The same associative freedom is at work: the Boy Scouts felt that having a gay scoutmaster, even one who never talked about homosexuality, undercut their message; the law schools feel that having military recruiters, even ones that receive nothing more from the schools than the space and freedom to recruit, undercuts their message.
Power Line has a valuable pointer to Georgetown Law professor Mark Tushnet's arguments against the suit. "The litigation would have to take on two difficult issues, the scope of Congress's spending power (an unconstitutional conditions point), and the degree to which the courts should defer to Congress's judgments in matters involving the military forces."
this Court has recognized that the existence of a Government "subsidy," in the form of Government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity," United States v. Kokinda, 497 U.S. 720, 726 (1990); Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.), or have been "expressly dedicated to speech activity." Kokinda, supra, at 726; Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U.S. 589, 603 , 605-606 (1967).I doubt the Court is likely to consider law schools' disapproval of anti-gay discrimination to be as great a threat as Communism, which was the problematic view held by Keyishan.
In contrast, the judicial deferral to Congressional judgment in military matters is of long standing, even overriding the heightened scrutiny of gender discrimination. Of all the liberal lions, Brennan, in his capacity as a Circuit Justice for the Third Circuit, stayed execution of a lower court's order to make Selective Service registration apply to both men and women, on the ground that the nation faced too pressing an emergency (the Soviet invasion of Afghanistan occasioned Carter's reinstitution of the draft registry) to be slowed by the bureaucratic upheavals of making the draft gender-neutral. A 6-3 Supreme Court upheld Brennan's decision, though he himself joined Justices White's and Marshall's dissents.
Still, even Rehnquist's majority opinion in Rostker v. Goldberg admits, "None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We, of course, do not abdicate our ultimate responsibility to decide the constitutional question..."
Part I(C) of Marshall's dissent provides rhetorical ammunition for those questioning the declaration of military necessity.
One such "safeguar[d] [of] essential liberties" is the Fifth Amendment's guarantee of equal protection of the laws. When, as here, a federal law that classifies on the basis of gender is challenged as violating this constitutional guarantee, it is ultimately for this Court, not Congress, to decide whether there exists the constitutionally required "close and substantial relationship" between the discriminatory means employed and the asserted governmental objective. [...] In my judgment, there simply is no basis for concluding in this case that excluding women from registration is substantially related to the achievement of a concededly important governmental interest in maintaining an effective defense. The Court reaches a contrary conclusion only by using an "[a]nnounced degre[e] of 'deference' to legislative judgmen[t]" as a "facile abstractio[n] ... to justify a result."Surely the First Amendment is also a safeguard of essential liberties, and a federal law that attempts to override it also should require a "close and substantial relationship" between Congress's anti-free speech means (cutting off funding to schools that refuse recruiters) and the asserted governmental objective of maintaining a prepared military.
The Third Circuit majority opinion defines the objective even more narrowly as "recruiting talented lawyers," and declares, "The availability of alternative, less speech-restrictive means of effective recruitment is sufficient to render the Solomon Amendment unconstitutional under strict scrutiny analysis. [...] The Government has failed to proffer a shred of evidence that the Solomon Amendment materially enhances its stated goal."
The dissent invokes the heroic image of our men and women in uniform serving in the war on terror, but practically speaking the people recruited from law schools are likely to have the thankless job of prosecuting or defending soldiers who have been charged with breaches in conduct. Law students who join the military probably are going to be dealing with Abu Ghraib fallout, not making Afghanistan safe for democracy. As far as I know, the military is not suffering a shortage of legal expertise in its investigations and prosecutions, so Brennan's concern of pressing necessity does not apply.
As a matter of probabilities, I suspect that the Third Circuit ruling will not stand. But I don't think it's as indefensible as some of the criticisms of it would suggest.