The New York Times takes a look at what Republicans believe might be their best line of attack should Solicitor General Elena Kagan be nominated to the Supreme Court — her opposition to the military’s “Don’t Ask, Don’t Tell” policy and her support for a lawsuit that would have barred military recruiters from Harvard’s campus.
In 2003 when Kagan became the dean of Harvard Law School, “Don’t Ask, Don’t Tell” — a policy that bars openly gay men and women from military service — was a hotly contested issue on campus. Feeling that the military’s ban on openly gay soldiers violated the school’s anti-discrimination policies, in 1979 the law school barred military recruiters from using their main career services offices for recruitment. But in the 1990s, Congress passed a law — called the Solomon Amendment — that would deny federal funding to any university that did not allow military recruiters access to its campus.
In an attempt to work out a compromise, Harvard agreed to allow military recruiters to recruit students via a student group — the Harvard Law School Veterans Association — but still barred them from using the career placement office.
In 2002, Congress stiffened the Solomon Amendment, threatening to cut off funding if any part of a school barred military recruiters. This left Harvard Law School in a bind, according to the New York Times: either allow military recruiters access or force Harvard to forfeit millions of dollars in federal funding. The law school relented.
When Kagan took over as dean the next year, she agreed to keep the policy allowing military recruiters access to the school, despite immense pressure from law school students and faculty and her personal opposition to “Don’t Ask, Don’t Tell,” which she called “a moral injustice of the first order.” Kagan did not join a petition with other law school faculty urging Harvard President Lawrence Summers to filed a lawsuit challenging the Solomon Amendment. But when other law schools did challenge the law, she signed on to an amicus brief in an appeal to the U.S. Court of Appeals for the 3rd Circuit and a second brief when the lawsuit reached the Supreme Court.
The court eventually sided, 8-0, with the military and upheld the Solomon Amendment.