Wash. Times op-ed falsely claims Kagan “ban[ned]” military recruiters from Harvard Law

From a May 19 Washington Times op-ed by assistant law professor Kyndra Miller Rotunda, titled, “Kagan's anti-military campaign”:

Recently, President Obama nominated former Harvard Law School Dean Elena Kagan for a lifetime appointment to the U.S. Supreme Court. This appointment has drawn criticism from both the left and the right, especially from those who serve in uniform -- U.S. soldiers.

This criticism stems from Ms. Kagan's 2005 decision to ban military Judge Advocate General (JAG) officers from entering Harvard Law School to meet and speak with law students who wanted to meet with the military recruiters because they were interested in becoming JAG officers. Why did she gag military lawyers? Because she disagreed with an existing federal statute that prohibited openly gay members from serving in the military.

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Denying JAG officers and willing Harvard law students the opportunity to meet and talk about opportunities to serve in the military is not fair to the military -- and it is not fair to law students who are interested in serving their country. It is, quite plainly, discrimination.

In fact, Kagan did not ban military recruiters from Harvard Law campus

Harvard students had access to military recruiters during Kagan's entire tenure as dean. Contrary to the claim that Kagan “ban[ned]” military recruiters from Harvard Law School, throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard Law's Office of Career Services (OCS) or through the Harvard Law School Veterans Association.

Kagan became dean of Harvard Law in June 2003 and continued the school's policy of granting the military a special exception to its nondiscrimination policy so that the military could work with the law school's OCS. In accordance with the nondiscrimination policy, Kagan barred OCS from working with military recruiters for the spring 2005 semester after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could legally do so. During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. During the fall 2005 semester, after the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS.

Harvard's data show that Kagan's actions did not hurt military recruitment. The notion that military recruitment was hurt by Kagan's actions is contradicted by data Media Matters for America obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could have affected only the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes.

Kagan did not “discriminat[e]” against the military

Kagan: Anti-discrimination policy applied to “any employer that uses the services of OCS.” Kagan did not, as Rotunda claimed, “discriminat[e]” against the military, but rather briefly ended the military recruiter exception (created in 2002) to Harvard Law School's broad anti-discrimination policy. In a September 20, 2005, letter, Kagan stated:

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.

In 2002, the then-Dean of the Law School, Robert Clark, in consultation with other officers of the University, reluctantly created an exception from the law school's general anti-discrimination policy for the military. The Dean took this action because of a new ruling by the Department of Defense stating that unless the Law School lifted its ban, the entire University would lose federal funding under a statute known as the Solomon Amendment. (This amendment denies federal funds to an educational institution that “prohibits or in effect prevents” military recruiting.)

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I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department's policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department's policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, holding that the Defense Department's policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit's ruling is stayed pending the Supreme Court's decision, which is expected later this year. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.) Although the Supreme Court's action meant that no injunction applied against the Department of Defense, 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. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season.

Robert C. Clark: Military was not able to sign nondiscrimination statement required of “all employers” seeking use of OCS. Kagan's predecessor as Harvard Law School dean, Robert C. Clark, wrote in a May 11 Wall Street Journal op-ed:

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.

Goldstein: Harvard anti-discrimination policy “predates Kagan's tenure as dean” and “was not directed at the military.” Supreme Court expert and attorney Tom Goldstein wrote in a May 8 SCOTUSblog post: “Some commentators have claimed that Kagan's position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. Harvard's position -- which predates Kagan's tenure as dean -- was not directed at the military but instead is a categorical nondiscrimination rule applicable to all potential employers. It is a position that is widely shared among American law schools.”

Contrary to Wash. Times' headline, Kagan's support for the military is well established

Harvard Law veterans: “Kagan has great respect for the military.” Responding to a January 30, 2009, Washington Times op-ed by Flagg Youngblood labeling Kagan an “anti-military zealot,” three 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." The veterans also stated that their support for military recruiting at the school “has not diminished our appreciation for Miss Kagan's embrace of veterans on campus.” The Harvard Law Record later reported on the veterans' letter, quoting Iraq veteran Geoff Orazem as saying, “Kagan has great respect for the military.”

Conservative legal blog: No reason to believe Kagan is hostile to the military. At Volokh Conspiracy, a group blog run by mostly conservative 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.”

Republican Sen. Brown: Kagan is “very supportive of the military as a whole.” The Hill reported on May 13 that Sen. Scott Brown (R-MA) stated after meeting with Kagan and discussing the military recruiter issue: "[I]t was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole." Brown added, “I do not feel that her judicial philosophy will be hurting men and women who are serving.”

Kagan at West Point: “I know how much my security and freedom and indeed everything else I value depend on all of you.” During Kagan's October 17, 2007, speech at the United States Military Academy at West Point, New York, Kagan stated: “I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I know how much my security and freedom and indeed everything else I value depend on all of you.” Kagan further stated that she has been “grieved” by “Don't Ask, Don't Tell” because she “wish[es]” that gays and lesbians “could join this noblest of all professions and serve their country in this most important of all ways.” Kagan added:

But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not. And I would regret still more if that disagreement created any broader chasm between law schools and the military. It must not. It must not because of what we, like all Americans, owe to you. And it must not because of what I am going to talk with you about tonight -- because of the deep, the fundamental, the necessary connection between military leadership and law. That connection makes it imperative that we -- military leaders and legal educators -- join hands and be partners.

Kagan: It's “just wrong” that gays and lesbians “cannot perform what I truly believe to be the greatest service a person can give for their country.” In an October 6, 2003, email announcing that Harvard Law School would allow military recruiters on campus, Kagan wrote that "[t]he importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination [against gay troops] more, not less, repugnant," a sentiment she reiterated in a 2005 letter offering “background” on the school's position on military recruiting on campus. In October 2004, Kagan reportedly said in protest of the ban on openly gay troops: “These men and women, notwithstanding their talents, their conviction, their courage, cannot perform what I truly believe to be the greatest service a person can give for their country. And that's just wrong, that's just flat out wrong.” In a 2008 statement on the military recruiting issue, Kagan wrote, “The military is a noble profession, which provides extraordinary service to each of us every day.”