This past Sunday, Sen. Jeff Sessions (R-AL) falsely asserted that Supreme Court nominee Elena Kagan “violated the law” during her tenure as dean of Harvard Law School (HLS). Spurred by that comment, panelists on MSNBC’s Morning Joe appeared confused today about whether Kagan complied with a law governing military recruitment on college campuses. Host Joe Scarborough, in particular, appeared unaware of the facts:
SCARBOROUGH: If I were in the United States Senate — because I would defer to a President, be he or she a Republican or a Democrat — I would support someone like Kagan unless she was shown to be a radical. But let’s get the facts right. The bottom line, there was the Solomon Amendment, it was straightforward, it said you could not ban recruitment on campus. She continued to ban recruitment on campus, at least through her office. And the Supreme Court voted 9–0 that she was violating the law.
Military recruiters were allowed on the law school campus for every minute that Kagan was dean, although as he suggests, the law school briefly processed these recruiters through its Veterans Association rather than its career services office during a single hiring cycle in the spring of 2005.
Scarborough is simply wrong to claim that Kagan at any point violated the law. The truth is that Kagan went above and beyond the law’s requirements as they were interpreted by the federal courts. In 2004, a U.S. Court of Appeals declared the Solomon Amendment, which requires universities to either grant access to military recruiters or to forgo certain kinds of federal funding, unconstitutional. Nevertheless, Kagan continued to allow the military to recruit on HLS’ campus — either through the career services office or through the HLS Veterans Association. Despite the Court of Appeals decision (which was eventually stayed by the Supreme Court), the Pentagon informed HLS that it would nonetheless cut off funding unless the law school allowed military recruiters to be processed by the same office as other employers. Kagan complied with the Pentagon’s request and allowed military recruiters to be processed through the career services office during the very next hiring cycle.
In March 2006, the Supreme Court reversed the court of appeals’ decision, adopting the Pentagon’s reading of the Solomon Amendment in the process. By this point, however, military recruiters were already availing themselves of HLS’ career services office. In other words, HLS was already in compliance with the Supreme Court’s decision, and HLS still complies with this decision to this day.
Under General Kagan’s leadership, HLS always permitted the military recruiters on campus, and it always complied with federal law. Sessions and Scarborough need to get their facts straight.