The White House is attempting to minimize Solicitor General Elena Kagan’s role in banning military recruiters from Harvard Law School while she was dean. The Obama team is using a variation on the Nuremberg defense, that Ms. Kagan was only following the established policies, and that this episode actually shows her at her most pragmatic. But far from simply implementing existing Harvard policies, Ms. Kagan was the prime mover in seeking to have the policies changed to keep recruiters out.
Ms. Kagan explained the motives for her drive to ban recruiters from campus in a Sept. 2005 message to students and faculty. “I believe the military’s discriminatory employment policy is deeply wrong,” she wrote, “both unwise and unjust.” In 2003, she described the Clinton-era policy as “a profound wrong - a moral injustice of the first order.”
Harvard had banned recruiters from the law school since 1979 based on an anti-discrimination policy, which is also the current rationale for banning ROTC from campus. In 2002, the then-dean of the Law School, Robert Clark, “reluctantly” according to Ms. Kagan, created a loophole for the military after a Defense Department threat to block federal funding for the entire university per provisions of a 1996 law known as the Solomon Amendment.
Dean Kagan continued the exception policy, until she had a chance to end it. She worked diligently as an independent (that is, not representing Harvard) member of a consortium known as FAIR to challenge the law, and signed an amicus brief in a case before the U.S. Court of Appeals for the Third Circuit. When that court ruled against the Defense Department policy, she rushed to end the recruiting loophole and keep recruiters off campus, even though the Supreme Court had stayed the Third Circuit’s ruling when it granted review of the decision. As a result of Ms. Kagan’s precipitous policy change, the military didn’t receive assistance from the office of career services during the spring 2005 recruiting season.
When the Defense Department responded to Ms. Kagan’s actions by again threatening Harvard’s federal funding, the dean relented and reluctantly reinstated the loophole. However, Ms. Kagan signed onto another amicus brief against the policy before the Supreme Court, which unanimously overturned the Third Circuit in 2006, letting the recruiting loophole stand. The fact that recruiters have access to Harvard Law today is only over Ms. Kagan’s best efforts to see that they did not.
A second weak pillar of the orchestrated White House defense is that recruiters, as Ms. Kagan wrote in 2005, “retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.” But according to a policy letter issued by the Veteran’s Association in February 2005, the organization accepted only “a limited interim role to assist fellow classmates who desire to investigate career opportunities as Judge Advocates or in other military endeavors.”
The association “declined interim options to establish formal liaison relationships, sponsor regular on-campus military recruiting fairs, coordinate interviews extensively or perform other equivalent functions.” They set up an e-mail address, which they noted “falls short of duplicating the excellent assistance provided by the [Harvard Law School] Office of Career Services.” The climate of officially sanctioned hostility at Harvard may have been the reason the organization recommended that recruiters “will be strongly encouraged to arrange for an off-campus location to conduct interviews and to send such notices no later than three weeks in advance of any area visit.”
Ms. Kagan did her best to use the powers of her office to try to keep military recruiters off campus in time of war. As Newt Gingrich said, it was “an act unbecoming an American.” Like the ROTC ban, this is a litmus test issue. Ms. Kagan was not being pragmatic; she was waging a personal moral struggle, and military recruiters paid the price. She instituted the ban the first chance she had, and after the Supreme Court ruling, she grudgingly reinstituted the policy she fought against. It’s obvious where her heart is - and that’s not with Americans in uniform.