So the issue isn’t discrimination, the issue is that the schools simply disapprove of the sort of discrimination mandated by Congress in regard to the military. Admissions to schools is a zero sum game, so discrimmination in favor of one is to the disadvantage of another. The fact that affirmative action under the pretext of “diversity” is legal doesn’t change the fact that it is discrimination.

So the real issue pled by the law schools is the right to discriminate in the manner they prefer. They do not wish to endorse discrimnation based on sexual preference, which is legal in the case of the military, boy scouts, etc. — but they do prefer to discrimnate on the basis of race, ethnic origin, etc., which is legal under the affirmative action caselaw.

I was also stunned by Rosenkrantz’s reference to the “conscience” of the law schools — that clearly means that any time the law school by “conscience” decalres a war to be immoral, or certain ideas to be immoral, they reserve the right to discriminate against access by their students to employers who share the “immorality du hour.”

Can’t remember if it was Breyer or Kennedy, but one of the strongest questions was: will the law schools deny access to recruitment by law firms that take on cases against gay marriage. Excellent point, and another weakness in the Rosenkrantz presentation and rationale.

A discriminatory preference is not the same as being against all discrimnation, so the moral force or “conscience” argument was pretextual at best.

Recipients of federal funds have become helplessly dependent on them for their survival.

A similar relationship exists between the United States & China. We have become so dependent upon them in the international marketplace (to the tune of a $200 billion surplus in 2005), that we can no longer take an aggressively hard stance against their human rights violations.

Universities are particularly good for feeding at the federal trough. It’s legal fiction to argue that they can simply forego the money. That’s like saying you could simply cut off your leg (femoral artery & all) to free yourself from being chained by the ankle to a post. In the end, however, those who have become addicted to federal funds are largely to blame for their dilemma in cases like this.

Maybe it was the Eagles who said it best: “I guess every form of refuge has its price.” From their 1975 hit song, Lyin’ Eyes.

Admittedly it’s not the best policy around, but let’s stick with baby-steps as we’ve gotten past the active investigation of potential homosexuals to a stance of toleration. A number of years from now we may see it be relaxed completely.

Finally, as others have pointed out on the net the colleges are unfairly demonizing the military when it was Congress that enacted the law in question.

The Solomon Amendment can’t be invalidated without calling into question longstanding federal civil rights statutes enacted under the spending clause.

Requiring schools to tolerate military recruiters on the same basis as other recruiters, for a brief visit to campus, is a lot less of a burden on a public college’s autonomy than requiring them not to discriminate on the basis of religion in admissions — something the 1964 Civil Rights Act forbids and allows the attorney general to sue over (42 USC 2000c, I think) — especially since an admitted student (say, an Evangelical Christian whose religion excludes gays and lesbians) is present on campus for four years, not just the one day that a military recruiter is present.

Yet no one questions the ability of Congress, through civil-rights spending-clause statutes, to limit colleges’ discretion over their student bodies.

The Third Circuit decision the Supreme Court is poised to reverse was also problematic in invalidating the Solomon Amendment not only as to private colleges (which have first amendment rights) but as to public colleges (which some circuits have held do not have first amendment rights, since the first amendment protects private citizens against the government, not the government itself).

It’s easy to sympathize with qualified gay students denied the opportunity to try out to be JAGs in the military. But the military doesn’t just discriminate based on sexual orientation — it also, for better reasons, considers the age and physical abilities of its applicants — something that law school non-discrimination policies would forbid, since they cover not only sexual orientation but also age and physical disability. Age discrimination and disability discrimination are generally unwarranted, but the military is a special case.

Allowing colleges to exclude the military because it discriminates would let them exclude the military forever, even if it drops its ban on gays, since the military necessarily takes into account factors like age that would be impermissible under a law school’s own nondiscrimination policy.

That would serve as a pretext for anti-military measures by colleges that are really interested in thwarting American foreign policy, rather than advancing civil rights.