Law Schools' Autonomy

Paul Horwitz at PrawfsBlawg has an interesting post on the Solomon Amendment case (raising the issue whether law schools have a constitutional right to ban military recruiters from campus).  His analysis bears directly on our discussion of the case's subsidiarity dimension and indirectly on our ongoing exploration (see, e.g., here, here, and here) of how a law school can and should cultivate its Catholic identity in an academic world dominated by a one-size-fits-all approach to legal education.  Horwitz focuses on:

the First Amendment implications of the Grutter/Gratz cases (which permitted affirmative action done in the manner of Michigan's law school, but not as conducted by its undergraduate admissions), and [argues] that if the Court takes Grutter seriously for its First Amendment implications, it ought to give serious weight to the plaintiffs' arguments against the Solomon Amendment.  Grutter suggested that because universities occupy a special niche in our constitutional tradition, they ought to enjoy substantial autonomy in shaping their own academic missions; where they have done so, those decisions are entitled to substantial deference.  In Grutter itself, that deference was weighty enough to help overcome what is supposed to be a strict level of constitutional scrutiny.  In the Solomon Amendment litigation, plaintiffs (including some law schools) argue that they have made precisely this determination: that permitting military recruiters on campus interferes with a fundamental academic mission of non-discrimination.  If the Court takes Grutter seriously, it ought to give substantial weight to the plaintiffs' arguments; they might still lose, but it ought to be a far closer case.

Rob