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Setting the Record Straight on Kagan and the Military

Since being nominated to serve on the Supreme Court, no portion of Kagan’s career has received more attention than her enforcement of Harvard Law School‘s (HLS) anti-discrimination policy against military recruiters that discriminated against lesbian and gay students. Because she enforced HLS’s sexual orientation-inclusive anti-discrimination policy, Kagan continues to be portrayed by the right as “anti-military” – a criticism that is clearly unsupported by the facts. To understand this period of Kagan’s career, it is important to understand the history of the “Don’t Ask, Don’t Tell” law, the Solomon Amendment and HLS’s anti-discrimination policy. In 1993, Congress passed the discriminatory “Don’t Ask, Don’t Tell” law, which prohibits openly lesbian and gay individuals from serving in the military. In response to the passage of this law, some institutions of higher learning began to prohibit military recruiters on campus. As a result, Congress passed a law commonly referred to as the “Solomon Amendment” in 1996. The Solomon Amendment empowers the Secretary of Defense to deny federal funds to institutions of higher learning that prohibit military recruiters on campus. Pre-dating either of these federal statutes is a 1979 HLS anti-discrimination policy that bars employers from using the Office of Career Services (OCS) to recruit law students if those employers discriminate on the basis of several factors, including sexual orientation. Because the military discriminates based on sexual orientation, their recruiters were barred by HLS’s anti-discrimination policy from using the services of OCS. HLS was not affected by the Solomon Amendment because it did not accept any of the federal funds restricted by the Solomon Amendment. In 2002, the Department of Defense issued an interpretation of the Solomon Amendment that would have the effect of blocking all federal funds to Harvard University in its entirety if HLS did not lift its ban on military recruiters using OCS. In order to prevent the entire university from losing 15% of its operating budget, HLS created an exception to its anti-discrimination policy for military recruiters. When Kagan became Dean in 2003, she maintained this exception. During Kagan’s first year as dean, she described the “Don’t Ask, Don’t Tell” law as “a profound wrong – a moral injustice of the first order” in an HLS community email. In addition, she encouraged students to demonstrate against the law. As a vocal opponent of the law, Kagan also joined fifty-three other faculty members on an amicus brief in Forum for Academic and Institutional Rights, Inc. (FAIR) v. Rumsfeld, a case challenging the Solomon Amendment before the Third Circuit Court of Appeals. Almost a year and a half into Kagan’s term as Dean, the Third Circuit ruled in FAIR that the Solomon Amendment was unconstitutional. In response to the court’s ruling, Kagan ended the military recruiter exception to HLS’s anti-discrimination policy. Prior to terminating the exception, however, Kagan went to great lengths to ensure that all students had access to military recruiters through the HLS Veterans Association. As one student veteran described, “if anything, Kagan was an activist in ensuring that military recruiters had viable access to students and facilities.” It was because of Dean Kagan’s ability to find a way to support the military while preserving Harvards’s anti-discrimination policy that Harvard’s military recruitment levels actually increased in some years during Kagan’s tenure as Dean. Ultimately, Kagan reinstated the military recruiter exception in 2005 after the Department of Defense once again threatened to withhold federal funds from the entire university. In a 2005 email to the HLS community, Kagan stated: “I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.” Kagan’s reinstatement of the exception was followed by a Supreme Court ruling in FAIR that upheld the constitutionality of the Solomon Amendment. This episode in Kagan’s career provides important insight into her belief system. Distinct from many of the other positions taken by Kagan, her passion for enforcing HLS’s anti-discrimination policy and opposing the “Don’t Ask, Don’t Tell” law seems uncharacteristically bold. Her rhetoric and action are indicative of a staunch advocate for anti-discrimination measures. When asked in her Solicitor General confirmation hearing why she passionately enforced HLS’s anti-discrimination policy, she stated that she believed that “the right thing to do was to defend that policy and to do so vigorously.” Once one looks at the facts involved in this episode in Kagan’s career, it is clear that she is not “anti-military;” her record shows that she enforced HLS’s anti-discrimination policy and opposed the discriminatory practices of the military, not the military itself. Partial Contribution by Jessica Singleton, Legal Assistant.

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