“The military had full access to our students at all times,” Kagan testified.
Senator Sessions took exception to her response. “I’m a little taken aback by the tone of your remarks,” he said. “It is unconnected to reality.”
The exchange took place during the first full day of testimony by Kagan in Senate Judiciary Committee hearings to examine whether she should be confirmed to fill the Supreme Court seat being vacated by retiring Justice John Paul Stevens.
Sessions’s questioning focused on a decision by Kagan in late 2004 to bar military recruiters from access to the law school’s Office of Career Services (OCS). That’s the office the school operates to make it as easy as possible for prospective employers to recruit and hire Harvard law students.
As a condition of receiving access to the OCS, recruiters must pledge not to discriminate against students, including based on sexual orientation. Because of the military’s “don’t ask, don’t tell” policy, military recruiters were routinely barred from access to the OCS.
After the 9/11 attacks, the military took a tougher stance against the Harvard policy, threatening to invoke the Solomon Amendment and cut off more than $300 million in federal funding to Harvard University unless the law school granted military recruiters full access to the OCS. (The Solomon Amendment threatens the withdrawal of federal funding from a university that denies military recruiters access to students that is equal with all other employers.)
Faced with the threat, the law school in 2002 decided to allow the military to use the OCS. Two years later, after a federal appeals court ruled that the Solomon Amendment was unconstitutional, Kagan reinstituted the ban on military-recruiter access to the OCS. (The US Supreme Court later overturned the appeals court, upholding the Solomon Amendment.)
Kagan’s decision returned the school to the old policy of requiring military recruiters to work through a student veterans group. She said that the effort went well and that recruiting rose during the year the OCS ban was in effect.
Despite Kagan’s comment, the military efforts never yielded more than a handful of recruits – even in the best years.
Defense Department documents suggest that the Pentagon considered access to the OCS to be an important aspect of military recruiting. A 2002 memo says in part: “Without the support of the Career Services Office, we are relegated to wandering the halls in hopes that someone will stop and talk to us. It is our view that denying access to the Career Services Office is tantamount to chaining and locking the front door of the law school – as it has the same impact on our recruiting efforts.”
In her testimony, Kagan suggested that her policy shift did not impose a hardship on military recruiters.
She said that she felt an obligation to reverse the military-recruiting policy as a means to uphold the school’s antidiscrimination stance and protect gay and lesbian students.
“Isn’t it a fact,” Sessions asked, “that you were acting in violation of Harvard’s agreement [with the Pentagon on military recruiting] and the law when you reversed the policy?”
Kagan disagreed. “We were never out of compliance,” she said. “Nobody ever suggested that Harvard should be sanctioned in any way.”
Released Defense Department documents show a trail of memos discussing, debating, and urging legal action against Harvard for the policy shift. Recruiters complained that they were being stonewalled by Harvard officials. The records show that Harvard agreed to reverse its policy as a result of behind-the-scenes negotiations conducted through the spring and summer of 2005.
Kagan acknowledged that the policy was later revoked. But she suggested that her decision had no impact on the quality of recruiter access on the law-school campus.
“The military at all times during my deanship had full and good access,” she said.
During a break outside the hearing room, Sessions told reporters he was disappointed by Kagan’s explanation of her actions in the military-recruiting controversy. “I believe this is a serious matter,” he said. “When the examination ended, I felt less comfortable than I did before.”
Kagan’s testimony is expected to continue on Wednesday morning.