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What Elena Kagan’s Role in the Harvard Military Recruitment Ban Really Says About Her

Critics of Kagan like to characterize her response to a dispute over military recruitment at Harvard as an unpatriotic protest, but her response was measured and moderate.

To hear her critics tell of it, Supreme Court nominee Elena Kagan’s “banning” of military recruiters at Harvard Law School while she was dean was an extreme, unpatriotic attack on America.

“At a time of war, in the face of the grand civilizational challenge that radical Islam poses,” National Review’s Ed Whelan fumed, “Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.” Whelan is referring to the involvement of some U.S. law firms in defending illegally detained persons who had been convicted of nothing, not “anti-American terrorists,” but that’s another matter. GOP strategist Patrick Ruffini condemned Kagan as an “anti-military leftist.” Even some liberals got in on the act. Former New Republic editor and ever-so-slowly-reforming liberal hawk Peter Beinart called Kagan’s decision a “statement of profound alienation from [her] country.”

You’d think she’d torched a flag or something.

See Dylan Matthew's article from last year on Kagan when she was rumored to be considered a replacement for former Justice David Souter in "A More Gay Friendly Supreme Court"

The facts behind the decision not to allow military recruiters at Harvard are subtler than Kagan’s critics make them out to be. For one thing, Kagan wasn't the one who barred the recruiters. Her predecessor as dean, Robert Clark, has explained that the military was barred from the law school’s Office of Career Services under its antidiscrimination policy since 1979—long before Kagan had even entered Harvard Law School, much less taken the job as dean.

Military recruiters were barred just as any employer that systematically rejects students on the basis of race, gender, or sexual orientation would have been because of the military's "don't ask, don't tell" (DADT) policy. Even then, the military continued recruitment on campus through a veterans organization. The ban on military recruitment, which protested DADT and affirmed the school’s commitment to LGBT students, did not actually hamper the military’s attempts to recruit at Harvard.

In 2002, the Pentagon threatened to pull federal funding for all of Harvard if the law school did not allow military recruiters back in. The law school receives no money from the federal government, but the medical and other faculties received $400 million a year. In 2003, Kagan became dean and had to respond. An appeals court ruled in 2004 that the Pentagon's threats were unconstitutional, but in the meantime Kagan did allow the recruiters back in while encouraging students to protest DADT on campus.

A group of law schools continued challenging the Pentagon’s threats in court, but Kagan and Harvard declined to join the lawsuits. Instead, Harvard Law School filed a brief coauthored by Kagan with the Supreme Court, arguing that it treated the military the same as any discriminatory employer. Goldman Sachs, the ACLU, or any other employer would have been banned if they had a stated policy of not hiring individuals based on their race, gender, or sexual orientation. Kagan argued Harvard was providing the “equal access” the Pentagon demanded. Kagan's brief did not argue, as some other schools did, that the Pentagon was acting unconstitutionally.

Kagan certainly did not avoid defending the principle of nondiscrimination, but at the same time she was not as aggressive in fighting recruitment as many of her peers at other schools. When the Supreme Court ruled the Pentagon was in the right, the recruiters stayed. Today you can still see military recruiters on campuses as a result of the ruling.

Kagan, then, did not put students seeking to serve in the military at a disadvantage in any way. Before the Pentagon’s initial threat, the military recruited on campus just as any other employer did. So long as Harvard exercised its antidiscrimination policy and limited recruitment that violated it, the administration ensured gay students would have their support. Even after the Pentagon and the Supreme Court ruled that law schools must allow recruiters back, Kagan’s steadfast opposition to DADT and encouragement of student activism ensured that the decision did not amount to a slap in the face for LGBT students.

Kagan’s critics, then, are stuck arguing that supporting LGBT students was not a worthy goal at all, and certainly not as worthy as the symbolic matter of changing the group that invited military recruiters to campus. They insist that the military should be allowed to play by special rules.

“Seeing the military as just another employer strikes me as bizarre,” Beinart insists, adding, “Barring the military from campus is a bit like barring the president or even the flag.” This would be convincing if Kagan and Harvard had also barred from campus the CIA, the State Department, or any other institution of the U.S. government acting in the nation’s defense. But they didn’t because those institutions don’t have special policies excluding certain kinds of employees. To read her support for the ban as a “statement of national estrangement,” as Beinart does, is either sloppy or willfully obtuse.

In fact, if anything, Kagan could have done a lot more to stick it to the U.S. government had she been the unpatriotic hippie her critics seem to want to characterize her as. Instead, she simply enforced antidiscrimination policies fairly and universally. Taking that obligation seriously says only good things about her willingness to stand up for minorities against government discrimination. The Supreme Court is supposed to be a bulwark for individual rights, and Kagan’s record on military recruitment shows an eagerness to serve that purpose.

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