Solomon Amendment

[DavidEBernstein at aol.com]

Marty,

You mean the way religious employees have to be accommodated under the 1964 
Civil Rights Act?  Or the way disabled employers must be accommodated under the 
ADA?  We have already traveled a long way from the concepts that applying 
"terms and conditions of access that apply to everyone else" consitutes 
nondiscrimination, and that requiring regulatees to apply different standards to 
protected classes (be they the religious, the handicapped, or the military) 
constitutes "special treatment" as opposed to "nondiscrimination".  It's quite 
apparent that under our current law, discrimination is whatever kind of treatment 
Congress defines as discrimination that harms the protected class.  The law 
schools are engaging in discrimination against the military, QED.  (Though I'd be 
pleased if the law schools win on unconstitutional conditions grounds, since I 
don't think there should be any antidiscrimination exemption from 
unconstitutional conditions).

In a message dated 12/6/2005 4:03:11 PM Eastern Standard Time, 
marty.lederman at comcast.net writes:
he military is receiving access to students on the same terms and conditions 
as all other employers.  (Better, even -- see below.)  Nevertheless, when 
pushed, the SG reveals its view that the SA requires not "equal access," but an 
exemption for the military from the terms and conditions of access that apply to 
everyone else -- "special" treatment, one might say.

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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