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.