WASHINGTON -- The U.S. Supreme Court agreed yesterday to decide whether Congress violated the free-speech rights of American law schools when it required that they allow military recruiters on campus as a condition of receiving federal funds.

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Known as the Solomon Amendment after its author, Rep. Gerald Solomon, R-N.Y., the law was inspired by the decision by some law schools to ban recruiters from their campuses because of the military's policies toward gays and lesbians.

Last year, the Philadelphia-based 3rd U.S. Circuit Court of Appeals issued an injunction against the enforcement of the Solomon Amendment. The court then stayed its order, and law schools have been complying grudgingly with the law during the appeals process.

There is no dispute that the U.S. military discriminates on the basis of sexual orientation. Under the "Don't ask, don't tell" policy, acknowledged homosexuality is grounds for dismissal.

In its present form and under Pentagon regulations, the Solomon Amendment calls for the cutoff of federal funds from any law school that doesn't give military recruiters the same access to students as other employers. Additionally, the parent university of an offending law school can lose its Department of Defense funds, which can be crucial to research institutions.

In asking the high court to take the case, the Bush administration said the 3rd Circuit's decision threatened the mission of the all-volunteer military during the global war on terrorism.

"Our nation's all volunteer armed services have been called upon to serve and they are performing their mission at the highest standard," acting Solicitor General Paul D. Clement said in the government's brief.

In granting an injunction to prevent the enforcement of the Solomon Amendment, the 3rd Circuit ironically cited a 2000 Supreme Court decision widely viewed as a defeat for the gays. In that decision, the court ruled that forcing the Boy Scouts of America to comply with a New Jersey law against discrimination on the basis of sexual orientation violated the Scouts' right under the First Amendment to "expressive association."

The 3rd Circuit said the Solomon Amendment had a similar effect on the law schools' First Amendment rights by muddying the message of their condemnation of bias against homosexuals.

In his majority opinion, Circuit Judge Thomas Ambro quoted the decision in which the Supreme Court upheld the exclusion of gay Eagle Scout James Dale: "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.' "

The 3rd Circuit decision was 2-1, with dissenting Senior Circuit Judge Ruggero J. Aldisert complaining that the majority didn't give necessary deference to provisions in the Constitution empowering Congress to "provide for the common defense."

In his petition for Supreme Court review, Clement picked up on this theme and said Congress was entitled to substantial deference to its judgment that "equal access is necessary to 'raise and support' military forces of the highest caliber."

Clement also argued that the Solomon Amendment was a legitimate exercise of Congress' right to decide how to spend federal funds and that it did not prevent law schools from criticizing the Pentagon.

"To the extent that educational institutions want to distance themselves from military policies more completely and send a less ambiguous message, they may simply decline assistance from the federal government, which advances the policies to which they object," Clement said.

But E. Joshua Rosenkranz, a lawyer for the Forum for Academic and Institutional Rights, representing 31 law schools, said the court should rule that Congress may not condition the receipt of federal funds on cooperation with discrimination against gays.

"If, as the Supreme Court has held, bigots have a First Amendment right to exclude gays, then certainly universities have a First Amendment right to exclude bigots," Rosenkranz told the Associated Press.

Legal observers had expected the high court to take the case, and the consensus is that the court will overturn the 3rd Circuit.

"It's not a slam dunk," said Eugene Volokh, a First Amendment expert at UCLA Law School, "but I'd say the government is favored."