The White House anticipates that the position Supreme Court nominee Elena Kagan took regarding military recruiters at Harvard Law School, during her time as dean there, will be one of the big points of attack from Republicans.
To be precise about what she did: Kagan reinstated a ban on military recruiters using the Harvard Law School Office of Career Services – and then under pressure from the Bush administration, she lifted the ban.
The policy banning military recruiters from using Harvard Law School’s Office of Career Services had been in place since 1979 because of the military’s ban on gay and lesbian troops serving openly. University policy requires that any employer who recruits at Harvard Law School and uses the services of office of career services must sign a statement indicating that it does not discriminate on various bases, including sexual orientation.
In 2002, under pressure from the Bush administration, Harvard Law School lifted that ban. Under the “Solomon amendment,” passed in 1994, the Secretary of Defense had the legal right to ban federal funds to universities that prohibit military recruiting or ROTC on campus. The law school itself didn’t receive much in terms of federal funding, but the university – largely the medical school and school of public health – received approximately 15% of its funding from the federal government.
One year later, in 2003, Elena Kagan became dean of Harvard law school.
At the school’s first reunion for LGBT alumni, Kagan said the “military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country.”
As she wrote in an email to the Harvard Law community, her predecessor had “determined, as did all his counterparts at other law schools, that he should make an exception to the School's anti-discrimination policy in the face of this threat to the University's funding. I left this exception in force this year, once again because of the enormous adverse impact a prohibition of military recruitment would have on the research and educational missions of other parts of the University. This action causes me deep distress, as I know it does a great many others. I abhor the military's discriminatory recruitment policy.”
Kagan had written that the “importance of the military to our society — and the extraordinary service that members of the military provide to all the rest of us — makes this discrimination more, not less, repugnant. The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.”
In January 2004 Kagan and other Harvard faculty offered an amicus brief supporting the effort of a coalition of law schools challenging the constitutionality of the Solomon Amendment, arguing it violated university First Amendment rights of free speech. The schools called themselves the Forum for Academic and Institutional Rights, or FAIR. The case was FAIR v. Rumsfeld.
In November 2004, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit ruled 2-1 later that year in favor of FAIR, saying that the Solomon was unconstitutional since it required the universities ''to express a message that is incompatible with their educational objectives.''
One day later, Kagan banned military recruiters from using the Harvard Law School office of career services.
Kagan would later note that military still had full access to students through the Harvard Law School Veterans Association, “which essentially took the place of OCS in enabling interviews to occur” for recruiting.
“My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood,” Kagan later wrote.
FAIR v Rumsfeld made its way to the Supreme Court. Kagan signed another amicus brief from Harvard professors.
In the Summer of 2005, the Pentagon alerted Kagan that that ''all possible funds'' would be withheld if Harvard Law continued to ban recruiters from OCS.
“As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy,” Kagan wrote in a September 20, 2005 letter to the Harvard Law School community, “This will mean that the military will receive OCS assistance during the fall 2005 recruiting season….The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.”
In March 2006 the US Supreme Court ruled unanimously, 8-0, against FAIR. (You can hear the oral arguments and the opinion announcement HERE.)
Last year, Sen. Jon Kyl, R-Ariz., asked Kagan her views on the matter during her confirmation hearing to be solicitor general.
"Do you think if you'd been solicitor general when it came to the court that you would have defended the statute?" he asked.
“There is a clear obligation on the part of the Solicitor General to defend the statute in that circumstance unless there is no reasonable basis to argue for the statute,” Kagan said. “And I feel comfortable in this case because it is a historic case, because I know the case—because I know the facts, because I know the litigating posture of the case, I feel comfortable saying, of course, there was a reasonable basis. I mean, my gosh, the Supreme Court rules 9–0. (sic) So I absolutely would have defended that statute…”
- Jake Tapper