A reader writes:
Much is misleading in this post. First, the position that Dean Kagan supported was in no way specific to, or limited to, the Ivy League. It was the stance of the vast majority of the nation's law schools, and of the Association of American Law Schools. That policy is to require member law schools to bar any employer that discriminates - it is not specific to the military - from recruiting on campus, because they will not pledge to recruit and hire fairly and equally among the entirety of our student bodies. In effect, the military has demanded - and, due to the requirements of the Solomon Amendment, received - special rights (oh, the irony) to discriminate in its employment practices and yet still recruit on campus as no other employer, public or private, is entitled to do.
The second thing that is misleading is that the best way to end DADT is "to make the best students available for recruitment." It is difficult, at best, to see how enabling discrimination and injustice represents the best path to ending it. The law schools who resisted - until Congress and the Pentagon made it impossible to continue to do so by putting our entire Universities' federal funding at stake if we did not capitulate - were standing for the principle that discrimination by the government is wrong, and that it is wrong to enable such discrimination. The end game that is now being played out by the Obama Administration - to finish off DADT once and for all - proves that Dean Kagan was entirely on the right side of both policy and history in this fight.
Kagan was defending the right of the Harvard Law School to make its own regulations as much as she was fighting discrimination against gays and lesbians. Here's the policy (as amended after she lost):
The Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, sex, gender identity, sexual orientation, marital or parental status, disability, source of income, or status as a veteran in admission to, access to, treatment in, or employment in its programs and activities.
The Harvard Law School makes one exception to this policy. Under threat of loss of funding to the University resulting from the Solomon Amendment, the Law School has suspended the application of its nondiscrimination policy to military recruiters. This exception to our policy does not in any way reflect acceptance of, or agreement with, discriminatory hiring practices.
Harvard has every right to determine its own regulations and any administrator would be expected to defend that right. Because of this case, Harvard DOES treat the military differently. It exempts the military from the requirement every other recruiter on campus must meet. I fail to see how one would reform the military by conforming to its discriminatory practices without complaint.
As is clear in Kagan’s 2005 email to the HLS community, barring the military from recruiting on the Law School campus was primarily a symbolic act and did not meaningfully discourage students from considering the military as a career. The military arranged for alternate opportunities to recruit. In any event, I think that there are very few HLS students who go from the school into the military, and those considering such a move are intelligent enough to figure out how to do this even without the military appearing with other on-campus recruiters.
Beinart is wrong to conclude that the action by the Law School was anti-military and denied the legitimacy of the military as a whole. Rather, the ban was simply HLS’ way of saying that, since the military discriminated, the Law School would not make on-campus space available for recruiting. This is by no means an indictment of the military as a whole or of its critical role in the nation, and I see nothing incompatible here.
I am a current law student and a gay veteran. The substance of Ms. Kagan’s e-mail is virtually identical to the e-mail that the student body at the University of Illinois College of Law receives every year, and I would imagine a large number of law schools follow suit. While I join in deploring the DADT policy and recognize it a form of discrimination, I cannot fault the school for its decision. Sacrificing educational funding and impeding the armed forces from recruiting talented attorneys would do nothing to hasten the repeal of DADT. On the contrary, it would only serve to cast DADT opponents as unpatriotic for failing to support the military.
As a sidebar, if the universities truly wanted to refuse to accommodate discriminatory employers, they would focus on jobs working with Congress, given that they are the body maintaining DADT.
I think Kagan should be confirmed and the DADT business should not be a hurdle, but I do think she should face some grilling on her decisions to ban military recruiters. Specifically, I would like to hear a senator ask her why she joined the Clinton administration after President Clinton signed the executive order (it was his order, not the military's, after all). Especially in light her words on the subject: "This action causes me deep distress. I abhor the military's discriminatory recruitment policy." She also wrote that it was "a profound wrong -- a moral injustice of the first order." If your beliefs on a subject were so deeply held, could you imagine working for the man who implemented the policy?
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