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How Elena Kagan worked to limit military recruiting at Harvard

Elena Kagan, Supreme Court nominee, said she 'abhorred' the Pentagon's 'don't ask, don't tell' policy banning gays from serving openly. In her confirmation hearings, critics will focus on her efforts to limit military recruiting at Harvard.

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One Air Force recruiter’s memo concludes: “We shouldn’t allow [Harvard Law School] to play this game.”

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Critics view Kagan’s stance in seeking to limit the access of military recruiters on the law school campus as a reflection of antimilitary bias. Supporters see it as a manifestation of her deeply held belief that the Pentagon’s “don’t ask, don’t tell” policy banning gay men and lesbians from serving openly in the military is a civil rights travesty.

“She was right,” Vice President Joe Biden told ABC’s "Good Morning America" in mid-May. “This is not a single bit of antimilitary bias.”

Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, disagrees.

“Ms. Kagan … kicked the military out of [Harvard’s] campus recruitment office,” he said in a speech on the Senate floor. “She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they were risking their lives for our country. It was an unjustifiable decision.”

'Kagan disregarded the law'

Senator Sessions added: “Ms. Kagan disregarded the law in order to obstruct military recruitment during a time of war.”

Defense Department documents show that Kagan’s efforts to hinder military recruiting immediately attracted the attention of Defense Secretary Donald Rumsfeld, among other Pentagon officials. “What can we do about that?” Mr. Rumsfeld asked in a memo to his general counsel.

Even later, after the US Supreme Court ruled in favor of the Defense Department’s position, Pentagon officials worried that Kagan might encourage students to organize noisy protests to disrupt military recruiters on campus.

“We’re all searching for a way to limit the polarizing nature of [the opponents to military recruiting] who now rattle sabers over an intent to shout down the military,” one memo says. “Dean Kagan is a case in point … as she reportedly ‘encouraged students to demonstrate against the presence of recruiters … [and to] express their views clearly and forcefully.’ ”

Two controversial policies

At the heart of the military recruiting issue are two controversial policies. The US military has long discriminated against homosexuals, forcing anyone who openly acknowledges that they are gay or lesbian to leave the armed services. In protest of that policy, Harvard and many other universities have taken action to ban or limit the ability of the military to recruit on campus.

Harvard requires all potential recruiters to agree not to discriminate against its students based on sexual orientation. Those who agree to that policy are granted full access to the school’s office of career services. Those who don’t are denied access.

Concerned that such school policies might undermine military recruitment, Congress passed the Solomon Amendment in 1996. The law threatens the withdrawal of federal funding from any university that denies military recruiters access to students on campus that is equal with all other prospective employers.

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