The Right's Bogus Charge Against Kagan

The most forceful line of attack on Elena Kagan during the confirmation hearing that starts Monday will be that she showed an "anti-military" bent when, as Dean of Harvard Law School, she "defied" a federal law by denying to military recruiters the help that the school's Office of Career Services provided to other employers.

If senators and voters end up deciding that this is a fair characterization, it will be extremely damaging to Kagan's chances. But it's not fair.

Kagan does deserve some criticism for making rhetorical attacks on "the military's" discrimination against gays while giving a pass to her former boss President Clinton and other Democrats who adopted the 1993 law that requires the military to discriminate.

But her policy did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.

And I'm betting that after she explains all the facts, she'll be confirmed by a comfortable margin of 63-37 or thereabouts.

The claim that Kagan has been hostile to the military is confounded by evidence that -- at the same time that she was enforcing the law school's antidiscrimination rules against recruiters -- she also praised the military as a "deeply honorable" and "noble" profession and took extraordinary pains to honor students who had served or planned to serve.

And the claim that she "defied" a federal law called the Solomon Amendment -- which provides that educational institutions should be stripped of federal funding unless they give military recruiters the same assistance and access to students as other employers -- reflects misunderstanding of how the amendment works.

I detailed Kagan's pro-military gestures in a May 15 National Journal column that also refuted claims that she had "banned" military recruiters from the campus; in fact, they were always permitted to use classrooms and other law school facilities for interviews. Here I explain why the charge that Kagan "defied" the Solomon Amendment does not hold up to scrutiny.

Kagan critics and even some supporters, including me, have given this charge more credence than it deserves by asserting that she "discriminated" against military recruiters -- conduct that the Solomon Amendment was indisputably designed to prevent.

But did she discriminate? On reflection, I think not. Rather, Kagan sought to subject military recruiters to the same rules as other employers. These rules included the law school's longstanding policy excluding from its Career Services Office any employer who discriminated against openly gay people.

(The law school suspended enforcement of this policy at times because of Bush administration threats to cut off Harvard University's more than $300 million in federal research funding. So Kagan actually denied military recruiters access to the career services office for only a few months, after a 2004 federal appeals court decision holding the Solomon Amendment unconstitutional.)

As explained in an amicus brief that dozens of Harvard law professors including Kagan filed in the Supreme Court, she and her predecessor as dean saw the law school's policy as fully compliant with the Solomon Amendment.

Under the Harvard-Kagan interpretation, the Solomon Amendment did not apply to educational institutions that disfavored any and all employers who discriminated against openly gay people, including the military. Rather, the amendment required denial of federal funds only to institutions that discriminated against the military qua military, as when universities barred ROTC from campus during and after the Vietnam War.

But under the interpretation adopted by the Bush administration and used by some other law schools, the Solomon Amendment required educational institutions such as Harvard to exempt military recruiters from the nondiscrimination rules that they enforced against other employers.

The Supreme Court unanimously adopted the Bush interpretation of the Solomon Amendment, and upheld its constitutionality, in March 2006. In the process, the justices firmly rejected the Harvard-Kagan interpretation, saying that it would render a the Solomon Amendment "a largely meaningless exercise."

This unanimous rebuff supports critics' claims that the Harvard-Kagan interpretation was hard to reconcile with the obvious intent of Congress. But given the Solomon Amendment's ambiguous wording, the Harvard-Kagan interpretation was far from frivolous.

And even under the Bush-Supreme Court interpretation of the Solomon Amendment, it was arguably impossible for Kagan to "defy" the law.

That's because the amendment -- a noncriminal provision -- does not purport to make it illegal for educational institutions or the people who run them to disfavor military recruiters. Nor does the amendment make it illegal for them to accept federal funds while disfavoring military recruiters. Instead, the Solomon Amendment appears to rely solely on economic incentives to force educational institutions to give military recruiters equal access.

Rather than placing legal obligations on educational institutions, the amendment directs the government to deny federal funding to any that insist on enforcing their gay rights rules against the military.

Of course, it would have been foolish for Kagan to place Harvard University's hundreds of millions in federal research funds at risk. And she did not. There was no chance that the government would cut off Harvard's funding without ample warning. And, once warned, Kagan and Harvard backed down and opened the office of career services to military recruiters.

In short, Kagan is neither a fool nor a scofflaw.