Let’s answer this RNC memo right now:
1. Does Kagan Still View Constitution “As Originally Drafted And Conceived” As “Defective”?
Ans.: — via the Huffington Post: It surely won’t be, ‘No, you’re right. The framers got it absolutely right, excluding women and blacks from the rights of citizenship.’”
2. Does Kagan Still Believe That Schools Should Be Allowed To Ban The Military From Recruiting On University Campuses?
Ans.: Short answer: dishonest frame. They can — and do — recruit through the Veterans Association, and she doesn’t like the fact that — as potential employers — they have a discrimination policy.
Longer answer via the previously linked SCOTUSblog:
In 1979, Harvard Law School adopted an anti-discrimination policy requiring any employer using the Office of Career Services for recruiting to sign a statement indicating that it did not discriminate on the basis of sexual orientation or certain other criteria; pursuant to that policy, the law school banned military recruiters from using the Office of Career Services.
At some point between 1979 and 1992, the school permitted recruitment through a student group, the HLS Veterans Association. (That group was founded in 1985; it is possible another group was involved earlier.) Under that policy, the recruiters used the same physical facilities, but were denied recognition under the law school’s career placement processes.
In 1996, Congress passed the Solomon Amendment, which blocks federal funding for schools which refuse to allow military recruitment on campus. The Amendment was passed in response to the refusal of many schools, including Harvard, to allow recruiters on campus on the ground that the military’s “don’t ask, don’t tell” policy violated the schools’ nondiscrimination policies.
Harvard does not appear to have changed its policy, likely regarding it as sufficient that the military was able to recruit through the student veterans group. Alternatively, the school may have concluded that it was not subject to the Solomon Amendment because the law school itself did not receive federal funding.
In 2002, the Department of Defense issued a ruling that the law school’s recruitment policy would trigger the loss of federal funding for all of Harvard University – $328 million. The law school relented by making an exception to its nondiscrimination policy and allowing the military full access to recruitment processes.
In 2003, Kagan was named dean of the law school. She maintained the existing policy.
Also in 2003, a consortium of law schools and faculty members – the Forum for Academic and Institutional Rights (FAIR) – challenged the Solomon Amendment on constitutional grounds. Although Harvard Law School was not a member of FAIR, in 2004, Kagan joined fifty-three other faculty members in signing an amicus brief in support of FAIR, but arguing that the case should be resolved on statutory grounds (as opposed to FAIR’s constitutional challenge).
In November 2004, a divided panel of the Third Circuit ruled in FAIR’s favor, but the ruling was stayed pending Supreme Court review of the case.
Immediately after the Third Circuit’s ruling, Kagan reinstated Harvard Law School’s prior policy: banning the military from using the main career office, but permitting access through the student veterans group.
The veterans group responded that it would attempt to coordinate recruitment to some extent by email, but it cautioned that it had “declined interim options to establish formal liaison relationships, sponsor regular on-campus military recruiting fairs, coordinate interviews extensively, or perform other equivalent functions. Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. Moreover, such copious involvement would dramatically constrict our ability to organize other, non-recruiting events. The above email address falls short of duplicating the excellent assistance provided by the HLS Office of Career Services. We sincerely hope, however, that it satisfies some needs of our interested classmates and that they feel entirely comfortable in approaching us as peers.”
When the federal government responded by threatening to withhold all federal aid from Harvard, Kagan rescinded the prohibition. Kagan wrote the following to the student body at the time: “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. The importance of the military to our society – and the great service that members of the military provide to all the rest of us – heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country.”
The government successfully petitioned for certiorari. In the Supreme Court, Kagan joined thirty-nine other law professors in signing an amicus brief in support of FAIR.
The Supreme Court subsequently upheld the Solomon Amendment, rejecting the position of FAIR and its amici (including Kagan), unanimously. After stating that the law school would of course follow the Court’s ruling, Kagan wrote: “At the same time, I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust — and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services.”
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.
It is fair to infer from the fact that Kagan did not attempt to repeal Harvard’s policy, and instead implemented it in full in the wake of the Third Circuit’s ruling despite the stay of the mandate, and moreover wrote to the student body in unambiguous terms, that Kagan personally supports the policy in full. But that is just to say that Kagan believes in the principle of nondiscrimination, including with respect to homosexuals.
There is no evidence that Kagan harbors any hostility towards the military. She hosted dinners at Harvard for veterans. Her email to the student body, quoted above, takes care to state her respect for the military, a topic about which she has spoken clearly. For example, when she was invited to give the distinguished Evening Lecture at West Point (available here), General Kagan explained that she was “in awe of [the cadets’] courage and dedication” and recognized that “my security and freedom and indeed everything else I value depend on all of you.” Kagan explained that in light “of the vital role the military plays in the well-being of the country,” she was “grieved” at the conflict between the military and law schools, including her “personal[]” belief “that the exclusion of gays and lesbians from the military is both unjust and unwise.” It was precisely because of her respect for the military that she “wish[ed] devoutly that these Americans could join this noblest of all professions and serve their country in this most important of ways.”
