Bashman, who represented three law school veterans groups that filed friend-of-the-court briefs on the government’s behalf in an earlier stage of the FAIR case, predicted that the justices would strike down the Third Circuit ruling by at least a 7-2 margin. “And it’s likely to be unanimous,” he said.

But Frase expressed confidence that FAIR would prevail. “We relied from the outset on established Supreme Court precedent that supported our arguments, and we’re just looking forward to seeing our strategy come to fruition,” she said.

“When the military is forcing law schools to hand out their recruiting literature, post their job announcements, and e-mail students to set up interviews, they’re being forced to disseminate the government’s message of discrimination,” Frase said. The Third Circuit panel majority agreed, ruling that law schools are “expressive associations” and cannot be compelled to advocate a viewpoint against their will.

Ironically—given that the Third Circuit’s ruling in FAIR was hailed by gay rights advocates—the panel’s majority opinion cites the Supreme Court’s 2000 ruling in Boy Scouts of America v. Dale, which upheld the scouts’ right to prevent an openly gay man from serving as a troop leader. According to the Third Circuit, the Boy Scouts cannot be compelled to include gays, just as law schools cannot be forced to include discriminatory employers at recruiting events.

In its petition to the Supreme Court, the Justice Department argued that because FAIR member schools “ha[ve] not been compelled to do anything,” but have “voluntarily chosen to enter into grant agreements or contracts” with the federal government, the schools must accept the stipulations attached to those grants.

“The solicitor general’s office essentially said that there is no constitutional limit to putting conditions on funding,” said FAIR founder Kent Greenfield, a professor of law at Boston College. “If they win, it’s the largest expansion of government prerogatives in a generation.”

Greenfield said he is “very optimistic” that FAIR can win the support of the justices who have proved to be swing votes on the court—namely Anthony Kennedy.

“Kennedy is both a good defender of First Amendment rights and has also been very attuned to issues of discrimination against gays and lesbians,” Greenfield said.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.