Ed Whelan claimed that, as dean of Harvard Law School, Elena Kagan “selectively” applied Harvard Law School's anti-discrimination policy when she restricted military recruiters from working with the law school's Office of Career Services (OCS). In doing so, Whelan makes a false contrast between Harvard's treatment of the American Red Cross and its treatment of military recruiters.

Most important, Whelan's continued suggestion that Kagan acted out of anti-military animus rather than because of Harvard Law School's antidiscrimination policies is contradicted by numerous facts: Kagan has repeatedly praised the military, veterans, and members of the armed forces. Iraq war veterans attending Harvard Law School wrote in a letter to the editor that Kagan has “created an environment that is highly supportive of students who have served in the military” and that "[u]nder her leadership, Harvard Law School has also gone out of its way to highlight our military service." according to the Harvard Law Record Iraq veteran Geoff Orazem said, “Kagan has great respect for the military.”

Robert Merrill, a captain in the Marine Corps who is serving as a legal adviser to a Marine infantry battalion in Afghanistan and who graduated from HLS in 2008 wrote in a Washington Post op-ed that Kagan “treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association.” And at Volokh Conspiracy, a group blog run by mostly conservative and libertarian law professors, George Mason University law professor Ilya Somin wrote: “I don't see any reason to believe that [Kagan's decision on military recruiters] reflects a general hostility towards the armed forces.” Furthermore, according to data Media Matters for America obtained from Harvard Law School, military recruitment did not drop as a result of Kagan's decision to bar OCS from working with military recruiters during the spring 2005 semester.

In addition, Kagan's specific argument is nonsensical. To back up his attack that Kagan selectively applied Harvard's anti-discrimination policy, Whelan falsely contrasted Kagan's banning of military recruiters from working with the Office of Career Services with Harvard's decision to allow the “law school's Republican Club to sponsor a blood drive by the American Red Cross even though the Red Cross does not allow gay men to give blood. (The Red Cross currently supports a “data-based reconsideration” of the FDA ban on blood donations by gay men.)

From Whelan's May 21 National Review Online blog post:

Imagine, hypothetically, that an outside organization working through a Harvard law school student group sought student volunteers to provide their services but barred gay male students from taking part. Sounds like that would be a clearcut violation of the law school's policy barring “discriminat[ion] against any person on the basis of ... sexual orientation ... in ... access to ... its programs and activities,” right?

Well, the hypothetical captures the on-campus blood drives that the American Red Cross has carried out under the auspices of the law school's Republican Club since the time that Kagan was dean. Under the Red Cross's policies, any “male who has had sexual contact with another male, even once, since 1977” should not give blood. An HLS student who has been involved in the blood drives assures me that the law school's administration has provided all the necessary sign-offs and accommodations to enable the blood drives to take place.

However, Whelan fails to explain how military recruiters were treated less favorably than the Red Cross. The Red Cross, according to Whelan, had access to Harvard law students through a Harvard Law School association - the Harvard Law School's Republican Club. Similarly, military recruiters had access to Harvard law students through a Harvard Law School student association -- the Harvard Law School Veterans Association. As Kagan's predecessor as Harvard dean Robert C. Clark explained in a Wall Street Journal op-ed:

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

For years, the U.S. military, because of its “don't ask, don't tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

[...]

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools' First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don't ask, don't tell.”

Does Whelan really believe his attack on Kagan has merit?

In his blog post, Whelan also suggests that Kagan countenanced discrimination by “top” law firms while applying Harvard's anti-discrimination policy to military recruiters. Whelan states that a current Harvard law student (who was not present when Kagan was dean) wrote him to complain that Harvard allowed people to list “summer diversity programs at top firms”:

More broadly, another HLS student has e-mailed me to observe that Kagan “selectively read the text [of the law school's nondiscrimination policy] in such a manner as to include only those acts of discrimination that she disagrees with”:

There's also the issue of minority scholarships, recruitment programs, etc. As someone who struggled to find a 1L summer job in this market, I can remember going through the listings for the many (usually paid) 1L summer diversity programs at top firms. That the law school, through OCS [the jobs office], would make those available to students is, in my view, aiding in a discrimination worse than don't ask/don't tell. (I can't choose to remain silent on my race.) Add to this the minority recruitment fairs, the Lavender recruitment initiatives/fairs, etc. and I think it's very clear, and quite telling, that the administration welcomes certain forms of discrimination on the basis of race and sexual orientation.

If Whelan really believes that “top” law firms are engaged in employment discrimination against non-minorities on the basis of race, perhaps he should suggest that the student file a class action law student against the law firms. After all, race discrimination is prohibited by the Civil Rights Act of 1964 as well as by state anti-discrimination laws. If “top” law firms were engaging in such discrimination, there must be some lawyer willing to take the case. After all, law firms have lots of money, class action litigation can be very lucrative, and the winning side in a federal employment discrimination lawsuit gets attorney's fees (hey, maybe Whelan can take the case himself). One stumbling block -- the Supreme Court has ruled that certain affirmative action programs by private employers do not constitute race discrimination.

I can only guess that Whelan doesn't really believe this attack either.