Kagan's Stance on Military Recruiting Under Scrutiny

The days leading up to Supreme Court nominee Elena Kagan’s Senate confirmation hearings have been marked by increased public scrutiny of the former Harvard Law School dean’s position on military recruiting at the school.

Last weekend, the Department of Defense released about 850 pages of documents indicating that Kagan did not prevent military recruiting at the Law School during her tenure as dean, although she barred recruiters from conducting interviews through the school’s career center.

The current controversy among federal lawmakers is whether military recruiters were banned from recruiting at the Law School during the spring of 2005. Kagan temporarily banned the military from using the Law School’s Office of Career Services facilities, arguing that the "Don’t Ask, Don’t Tell" policy—which openly bans those who are openly gay, lesbian, or bisexual from serving in the military—did not align with the school’s non-discrimination policy.

"I believe the military’s discriminatory employment policy is deeply wrong— both unwise and unjust," Kagan wrote in a September 2005 letter to the Law School community, voicing her opposition to the policy. "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."

But a recently uncovered e-mail indicates that although recruiters were barred from OCS services and facilities, they were not prevented from independently recruiting on campus. The message detailed a number of campus recruitment opportunities, including the United States Army Judge Advocate General's Corps interviews for summer internships and "full-time active duty positions."

In addition, a spring 2005 letter penned by the Harvard Law School Veterans Association following Kagan’s ban on military recruiters’ access to OCS services stated that Kagan asked the association to “facilitate some measure of interested student access to military representatives” to compensate for any inconveniences caused by the policy decision. The HLSVA complied by setting up an e-mail address for interested students to send confidential inquiries.

Although Kagan did not ban military recruiters, her critics claim that she created inadequate access to recruiting services for students interested in joining the military. In the same letter sent in spring 2005, the HLSVA conceded that the e-mail address “falls short” of duplicating the services of OCS, suggesting that Kagan’s restrictions complicated military recruitment for interested students.

Despite her opposition to "Don't Ask, Don't Tell," Kagan maintained an exception to the school's non-discrimination policy that allowed the military to recruit through the OCS as they had done since 2002, before she assumed the deanship.

But in spring 2005, Kagan eliminated that exception in response to a Third Circuit Court decision that ruled as unconstitutional the Solomon Amendment, which grants the military agency to cut funding to a university that "prohibits, or in effect prevents" military recruiting. Kagan reinstated the exception only a few months later under pressure from the Department of Defense, which threatened to cut funding to the University.

Kagan, who clerked for Justice Thurgood Marshall and previously served as Solicitor General, was nominated to replace Justice John Paul Stevens on the Supreme Court by President Barack Obama on May 10. Kagan, 50, would be the youngest Justice on the Court, and the first Justice since William H. Rehnquist without prior judicial experience.

—Staff writer Derrick Asiedu can be reached at dasiedu@fas.harvard.edu.