Media, Republicans Propagate Myth That Kagan ‘Banned’ Military Recruiters From Harvard Law School

Moments after President Obama nominated Solicitor General Elena Kagan to the Supreme Court, Republicans lashed out against the nominee, claiming that she blocked military recruitment during her tenure as dean of Harvard Law School. Last night, Sen. Jeff Sessions (R-AL) said that Kagan “block[ed] these wonderful men and women from being on the campus,” and this morning the Washington Times wrote, “as dean of the Harvard Law School, Ms. Kagan banned military judge advocate general recruiters from campus in protest of the military’s ‘Don’t Ask, Don’t Tell’ rules on open homosexuality.” MSNBC host Joe Scarborough was so sure that the military was kicked off campus, he seemed genuinely shocked when White House adviser Valarie Jarrett set the record straight.

Watch the exchange:

Indeed, military recruiters operated on campus throughout Kagan’s tenure, despite the University’s long-standing 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.” Since the mid 1980s, the military had been able to recruit on campus through the HLS Veterans Association and the University allowed the military into the Office of Career Services in 2002, after the Department of Defense “stiffened the Solomon Amendment, threatening to cut off funding if any part of a school barred military recruiters.”

Robert Clark, a former Harvard Law School dean explains in today’s Wall Street Journal, “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 only prevented the military from recruiting through the career office after the Third Circuit Court of Appeals ruled against the Solomon amendment. Even then, she supported their right to access to students via the veterans association. Once the Supreme Court overruled the Third Circuit and upheld and Solomon Amendment, however, Kagan regrettably reinstated the exemption for military recruiters, letting them back into the career office.

As Clark writes, “Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.”