How Elena Kagan worked to limit military recruiting at Harvard

Harvard negotiated a compromise in which military recruiters would gain access to students interested in military service through a student social organization of military veterans. But the recruiters were still barred from the career services office.

After the 9/11 terrorist attacks with US forces deploying abroad, the Pentagon took a much tougher stance on the recruiting issue, insisting that the military be granted the same access as other recruiters. If not, universities would start losing federal funding, officials warned.

At Harvard, that meant the entire university might lose $328 million in federal funding. In August 2002, the law school reversed its policy. For the first time in decades it allowed military recruiters to use the career services office like every other prospective employer.

Kagan inherited the changed policy when she became dean of the law school in 2003. She made no secret of her opposition to allowing military recruiters equal access to students.

'I abhor the military's discriminatory policy'

“This action causes me deep distress, as I know it does a great many others,” she said in a 2003 message to the law school. “I abhor the military’s discriminatory recruitment policy.”

In the meantime, a group of law schools and faculty members filed a lawsuit challenging the constitutionality of the Solomon Amendment.

A federal judge threw the suit out, but a panel of the Third US Circuit Court of Appeals in Philadelphia agreed with the law schools. On Nov. 29, 2004, the panel voted 2 to 1 that the Solomon Amendment violated the First Amendment rights of the law schools and that any efforts by the government to enforce the amendment must halt.

Kagan and others celebrated the legal victory. At the Pentagon, with two wars under way, the ruling prompted concern.

Here is where the story gets a bit complicated.

When an appeals court issues an opinion, that doesn’t mean the opinion takes immediate effect. The government appealed the Third Circuit’s decision to the US Supreme Court. To facilitate the appeal, the Third Circuit stayed its ruling, and postponed its suggestion that an injunction be issued against enforcement of the Solomon Amendment.

Nonetheless, the day after the Third Circuit opinion, Kagan announced that the law school would return to its prior policy of sharply limiting the access of military recruiters.

“This return to our prior policy will allow [the office of career services] to enforce the law school’s policy of nondiscrimination without exception, including to the military services,” she said.

Defense Secretary Rumsfeld gets involved

It is at this point that Defense Secretary Rumsfeld fired off his memo to the Pentagon’s general counsel.

In her statement, Kagan said that the Third Circuit ruling had “enjoined the enforcement of the Solomon Amendment.” That statement is true but misleading given that the case would almost certainly be appealed. If appealed, the force of the decision would likely be stayed pending the outcome of the appeal.

That’s what happened. Despite Kagan’s actions, the Solomon Amendment remained in full force.

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