Right-wing media adopt false attacks on Kagan over military recruitment policy

NY Post: Kagan's decision was a “shameful refusal to permit military recruiting.” In a May 11 editorial, the New York Post wrote that “she has declared the 'don't ask, don't tell' policy 'a moral injustice of the first order' -- and used it as the basis for her shameful refusal to permit military recruiting at Harvard Law School when she served as its dean.

NY Post op-ed: Kagan ”banned military recruiters from her campus." In a May 11 New York Post op-ed, Instapundit's Glenn Reynolds wrote, “As dean of Harvard Law School, Kagan banned military recruiters from her campus and fought legislation aimed at ending such bans, because of her (and the legal academy's) opposition to the military's 'Don't Ask, Don't Tell' policy.”

Hannity: Kagan “kick[ed] military recruiters” off Harvard campus and was “in violation of federal law.” On the May 10 edition of Fox News' Hannity, Sean Hannity claimed that Kagan's “most notable act was to lead an effort to kick military recruiters off of the college campus, by the way, in the middle of a war.” Fox News contributor Dick Morris replied: “Not only that, but she supported defunding campuses, cutting off federal funds if they barred military recruiters.” Hannity went on to say: “What she was supporting was in violation of federal law. In other words: kicking recruiters off campus. But here's the point. Eight to zero, the Supreme Court went against her point of view. Eight to zero. Which tells me, she would be to the left of Ruth Bader Ginsburg.”

Kristol: Kagan “tried to bar military recruiters” and has “hostility to the U.S. military.” William Kristol wrote in a May 10 Weekly Standard blog post, titled “An Anti-Military Justice?”:

For me, the key obstacle to Elena Kagan's confirmation is pt. 5 in Ed Whelan's NRO post, which is also the question raised by Peter Berkowitz in these pages several years ago and by Peter Beinart just recently: Her hostility to the U.S. military.

Hostility? Isn't that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions--embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court--and her words?

Gateway Pundit: Kagan is an “anti-military loon” who “expelled military recruiters from the Harvard campus.” Jim Hoft wrote in a May 10 Gateway Pundit post, titled, “Obama Picks Anti-Military Loon Elena Kagan For Supreme Court”:

Obama picked an anti-military loon to sit on the Supreme Court today. Elena Kagan expelled military recruiters from the Harvard campus in defiance of The Solomon Act. Her case was rejected by even the most liberal justices of the Supreme Court. Of course, the fact that Obama would nominate some radical with such poor judgement to the Supreme Court surprises no one.

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Elena Kagan's most notable foray into public life was kicking military recruiters off of Harvard's campus. This must have impressed Barack Obama so much that he is putting her on the Supreme Court.

God Bless America.

Erickson: Kagan thought it “proper to throw the military off college campuses.” In a May 11 RedState blog post, Erick Erickson wrote that President Obama “is not only replacing the last veteran on the Supreme Court with a non-veteran, but replacing that veteran with a woman who thought it constitutional and proper to throw the military off college campuses. She did not only think it proper, she went all the way to the United States Supreme Court for that right only to be beaten down in an 8-0 decision.”

In fact, students had access to military recruiters during Kagan's entire tenure as dean

Robert C. Clark debunked claim that Kagan banned military recruiters. In a May 11 Wall Street Journal op-ed, Robert C. Clark -- Kagan's predecessor as dean of Harvard Law School -- explained:

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.

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

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After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school's nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military's policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school's nondiscrimination policy, stating her objection to “don't ask, don't tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. Throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services or through the Harvard Law School Veterans Association. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could do so. As The New York Times explained in a May 6 article:

[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.

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[E]ven when she ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students. [emphases added]

Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment" -- a statute requiring schools to provide the same access to military recruiters that they provide to other potential employers or lose federal funding.

Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 1990s, based on its anti-discrimination policy, Harvard Law School refused to allow military recruiters to use the school's Office of Career Services (OCS) because of the military's discriminatory “Don't Ask, Don't Tell” policy. In 2002, after the Bush administration threatened federal funding at Harvard, Kagan's predecessor as dean created an exception to Harvard's anti-discrimination policy and allowed military recruiters access to OCS. When Kagan became dean in 2003, she continued to allow military recruiters access to OCS.

After an appellate court -- including a Reagan appointee -- ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard's career office from working with recruiters for one semester. In 2004, a three-judge panel of the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: “The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom.” Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Following the 3rd Circuit's ruling, Kagan reinstated the ban against military recruitment through OCS for one semester in 2005. After the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS. In 2006, the Supreme Court reversed the 3rd Circuit decision.

During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. The New York Times noted on May 6 that “even when [Kagan] ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students.” As Kagan explained in a September 2005 letter to her colleagues:

The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military 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.

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I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.

Gottheimer: "[T]here were more people going into the military...than ever before, going in during her tenure." On the May 10 edition of CNN's Larry King Live, former Clinton staffer Josh Gottheimer, who was at Harvard while Kagan was Dean of the Law School, said that Kagan's actions were “definitely not controversial,” although “some Republicans are trying to make it controversial now.” Gottheimer also said, “Dean Kagan, at the time, always allowed the military on to recruit. In fact, there were more people going into the military after the third year of law school than ever before, going in during her tenure.”