Others offered their own theories.
There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side’s arguments, said the defeat demonstrates the “ridiculously obvious” point that the Supreme Court is “a justificatory instrument” for military policy.
Then there is the clueless law professor theory.
Peter H. Schuck, a Yale law professor who thought the law schools’ legal position was misguided, said that many professors were so indignant about the military’s treatment of gay men and women and so scornful of the military itself that their judgment became clouded.
“There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment,” Professor Schuck said.
The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.
“If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy’s echo chamber, you get this result,” said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.
The most bizarre aspect of the whole litigation, in my opinion, was that the Third Circuit opinion ruling for the law professors failed to discuss or even cite the case most obviously on point, Grove City College v. Bell, which held in rather conclusory language that Congress has rather wide authority to encourage universities via threats of withholding funding to follow federal policy, even if direct legislation on such issues would violate the schools’ First Amendment rights. It was as if the Third Circuit majority decided that conditional federal funding was okay when it operated in the interest of “civil rights,” as in Grove City, but not when it was not in the interest of “civil rights” as in the FAIR litigation. In fact, however, as I’ve noted before, the Solomon Amendment was modeled directly after Title IX, the antidiscrimination provision at issue in Grove City. Instead of being forced to adhere to rules designed to ban discrimination against women, Solomon required law schools to adhere to rules designed to ban discrimination against military recruiters. No amount outrage over what is seen as Congress’ moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College’s funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard.
One bright spot of the FAIR opinion is that the Court seemed to suggest that it was willing to consider in a future case how broadly Grove City should be interpreted before the “unconstitutional conditions” doctrine kicks in. As someone who is very much opposed to the federal government exercising control over university policy via its spending power, that is a potentially welcome development indeed.
UPDATE: A VC commenter writes below:
Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the “discrimination?” Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities.
I’ve heard this argument many times before, but, sorry,it doesn’t really help distinguish FAIR from Grove City. Grove City was not even alleged to have ever engaged in sex discrimination. Rather, the federal government threatened Grove City because it refused to collect statistics that the government wanted it to collect. Surely, if the government could take away Grove City’s funding for engaging in behavior which wasn’t even alleged to be discriminatory, the government could take away Yale’s money for engaging in behavior that the government has defined as discriminatory. Also, as C.J. Roberts emphasized, the reason law schools had for discriminating against military recruiters, that the military itself discriminates against homosexuals, doesn’t make the law schools’ behavior any less discriminatory, but, at best, means that the law school thought it’s reasons for discriminating were more important than the government’s reasons for prohibiting discrimination. Whether that point of view is correct or not is, alas, legally irrelevant, as law schools cannot simply choose to obey only the laws they agree with.