Justices will review a lower court ruling in favor of 25 law schools that restricted recruiters in protest of the Pentagon's policy of excluding openly gay people from military service.
That ruling, by the Philadelphia-based 3rd U.S. Circuit Court of Appeals, invalidated a 1994 federal law requiring law schools to give the military full access or else lose their federal funding. The appeals court ruled that the law infringed on law schools' free speech rights.
The Supreme Court will hear the case during its next term, which begins in October.
The law, known as the Solomon Amendment, has been controversial for law schools that have nondiscrimination policies barring any recruiter — government or private — from campus if the organization unfairly bases hiring on race, gender or sexual orientation.
"The Solomon Amendment forces the law school to violate its own policy and actively support military recruiters who come onto campus to engage in the very discriminatory hiring practices that the law school condemns," wrote the law school coalition, known as the Forum for Academic and Institutional Rights.
The Bush administration countered in court filings that equal access to campuses for recruiting is necessary to fill the military's legal ranks "in a time of war." It said the law does not violate free speech rights because schools are free to protest so long as they are willing to forgo federal research dollars, which amount to hundreds of millions at some schools.
"The Solomon Amendment reflects Congress' judgment that a crucial component of an effective military recruitment program is equal access to college and university campuses," acting Solicitor General Paul Clement wrote.
A three-judge panel of the 3rd Circuit disagreed. It voted 2-1 to bar enforcement of the Solomon Amendment pending a full trial because of a "reasonable likelihood" the law would be found unconstitutional.
In its decision, the 3rd Circuit cited a 2000 Supreme Court ruling that allowed the Boy Scouts to exclude gay scoutmasters. Just as the Scouts have a right to exclude gays based on a First Amendment right of expression, so too may law schools bar groups they consider discriminatory, the 3rd Circuit said.