ELENA KAGAN AND THE MILITARY

Posted By on May 18th, 2010

Newt Direct

SUMMARY: Elena Kagan, while Dean of Harvard Law School between 2003 and 2009, enforced the university’s ban on military recruiting through the formal on-campus interview program on grounds that military hiring guidelines were discriminatory. She repeatedly criticized the military’s “don’t ask, don’t tell” policy on homosexuals in a variety of venues, and in 2005 signed onto an amicus brief urging the Supreme Court to overturn the Solomon Amendment, which restricts federal funding to universities that ban military recruiters. (The Supreme Court unanimously ruled in favor of the military and against the academics that had brought the case).

While Harvard faculty has lambasted the United States Military for its policy on homosexuals – a policy passed by a Democratic Congress and signed by President Bill Clinton, Kagan’s former boss, in 1993 – the university has simultaneously accepted large donations from the Saudi royal family. We find it extremely hypocritical that Kagan has persistently belittled the military for obeying the law of the land, while her employer has simultaneously accommodated and eagerly sought funding from a regime that is perhaps the worst persecutor of homosexuals and women in the world.

Background: Military Recruiting and the Solomon Amendment

  • After a Democratic Congress and President Bill Clinton passed the “don’t ask, don’t tell” law that prohibited homosexuals from serving in the U.S. military, many American universities banned military recruiters from campus on grounds that the military had discriminatory hiring practices.
  • In response, Congress passed and Clinton signed the Solomon Amendment in 1996, which allows the Secretary of Defense to withhold federal funding from universities that ban military recruiters from campus. (Please find text here: http://www.yalerotc.org/Solomon.html)


Harvard Law School, where Elena Kagan was Dean from 2003-2009, had limited military recruiting on its campus.

Between 1979 and 2002, Harvard Law School banned the U.S. military from recruiting on campus through its Office of Career Services (OCS) per an anti-discrimination policy instituted in 1979. This is the career placement program that most law firms and other federal government agencies use to recruit and hire Harvard Law graduates.

  • The University claims that it only enforced a symbolic ban. It allowed the military to conduct interviews under the auspices of a student group, the Harvard Law School Veterans Association – though the military was still banned from using the formal on-campus career placement program.
  • In 2002, once the federal government threatened to withhold all funds, Harvard made an exception for the military and allowed it to use OCS – though faculty continued to rail against the U.S. military. However, when the Third Circuit appellate court found the Solomon Amendment to be unconstitutional in 2005, Dean Kagan once again banned the military from using OCS, and restored the old policy of requiring that the military recruit through un-official channels
  • The Supreme Court overturned the circuit court on appeal, and Kagan begrudgingly allowed the military back into the OCS program.

(For more information: http://www.scotusblog.com/2010/05/9750-words-on-elena-kagan/)

  • This rings similar to Harvard’s policy on ROTC, in which it allows students to participate in the military program but forces them to conduct ROTC training activities off-campus, a few miles down the street on the MIT campus. This policy was initially instituted to protest the Vietnam War, but has persisted to this day. (Yale, another Ivy League university that bans ROTC programs from campus, requires that cadets travel even further away to train: The Army and Air Force participants must haul 63 miles to the University of Connecticut’s campus at Storrs to participate in ROTC classes.)


While Dean of Harvard Law School, Kagan repeatedly bashed our military for its “discriminatory policy,” although military recruiters were merely obeying the law of the land.

Consider the following letters to “All Members of the Harvard Law School Community” sent to law students at the beginning of each academic year. All disparage our military’s presence on the Cambridge campus:

  • On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc. (See here for a full copy of one of Kagan’s letters: http://www.law.harvard.edu/news/2005/09/20_recruiting.php)
  • However, the U.S. military’s policy regarding homosexuals is not “discriminatory policy” enacted by the military – as Weekly Standard editor Bill Kristol points out, the military is merely following a law passed by a Democratic Congress in 1993 and signed by President Bill Clinton.
    • “But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.As Ed Whelan asks, “Instead of taking potshots at military recruiters who were merely complying with the law, did Kagan ever exclude from campus any of the politicians responsible for the law?” (http://www.nationalreview.com/bench-memos/49033/kagans-pragmatism-no-cheap-moral-posturing/ed-whelan ; http://www.weeklystandard.com/blogs/anti-military-justice)
    • Despite her detesting of a policy passed by the Clinton Administration, Kagan served as President Clinton’s Associate White House Counsel and Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council between 1995 and 1999. (http://online.wsj.com/article/SB10001424052748703880304575236161795328900.html?KEYWORDS=elena+kagan)
  • Even progressive commentator Peter Beinart was critical of Kagan’s grandstanding against the military, noting that you “alienate yourself from [the military] without, in a certain sense, alienating yourself from the country”
    • “The United States military is not Procter & Gamble. It is not just another employer. It is the institution whose members risk their lives to protect the country. You can disagree with the policies of the American military; you can even hate them, but you can’t alienate yourself from the institution without, in a certain sense, alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It’s more than a statement of criticism; it’s a statement of national estrangement.”(http://www.thedailybeast.com/blogs-and-stories/2010-04-19/elena-kagans-achilles-heel/)

     

    In 2005, Kagan was one of several dozen Harvard faculty members who signed an amicus brief urging the Supreme Court to reject the Solomon Amendment on First Amendment grounds.

    • The U.S. Court of appeals for the Third Circuit deemed the Solomon Amendment unconstitutional in 2005.
      • Yale Law School Dean – and current Legal Adviser to the Obama State Department – Harold Koh immediately banned all military recruitment from campus following the decision. You can see our piece on this travesty here: http://www.aei.org/article/21982
    • The Department of Defense appealed the case to the U.S. Supreme Court Shortly thereafter. Kagan signed an amicus brief on behalf of FAIR (“Forum for Academic and Individual Rights,” the petitioner that initially brought the case against the military.) (See amicus brief here: http://www.law.georgetown.edu/solomon/documents/FAIRamicusHarvard.pdf)


    The Supreme Court unanimously affirmed the constitutionality of the Solomon Amendment, allowing the federal government to continue to withhold funds from universities that keep military recruiters off campus.

    • When delivering the court’s opinion on March 6, 2006, Chief Justice John Roberts decisively argued that the presence of military recruiters on campus did not constitute a violation of the academics’ First Amendment rights:
      • “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. . . . Surely students have not lost that ability by the time they get to law school.” (Full argument of Chief Justice John Roberts: http://www.oyez.org/cases/2000-2009/2005/2005_04_1152/opinion; Supreme Court’s written opinion: http://supreme.justia.com/us/547/04-1152/)
    • Roberts also delivered a decisively pointed remark castigating the academics’ moral posturing and spinelessness:
      • “The reason [your students] don’t believe you [when you oppose military recruitment] is because you’re willing to take the money. What you’re saying is, ‘This is a message we believe in strongly, but we don’t believe in it to the detriment of $100 million.” (http://www.pbs.org/newshour/bb/law/july-dec05/recruitment_12-6.html)
    • Hoover Institution fellow Peter Berkowitz argues that law professors had unfairly tried to politicize U.S. law, instead of
      • “Certainly law professors who wanted to eliminate “Don’t Ask, Don’t Tell” and had respect for democratic politics would not have put the focus on their own contrived deprivations of expression and association, but would have concentrated on the claims of gay and lesbian citizens who wish to put their lives on the line for their country. Such law professors would have educated themselves and made themselves aware that the U.S. armed forces are far and away the most integrated institutions in the nation, indeed, greatly surpassing elite law school faculties and student bodies.” (http://www.weeklystandard.com/Content/Public/Articles/000/000/011/959tzkai.asp)


    Although Harvard has fought the presence of the U.S. military on its campus, the school has been quite eager to accept funding from the Saudi Arabian monarchy – and look the other way on Saudi Arabia’s despicable record on homosexual and other human rights.

    • While the awaiting the Supreme Court’s decision on the Solomon Amendment  Harvard and Georgetown both accepted $20 million donations from Saudi Prince Alwaleed bin Talal in December 2005. Alwaleed is the same individual who donated millions to 9/11 victims in 2001 only to go on and rip American foreign policy.
      • In the same weeks that Harvard waited for Court’s response to the FAIR appeal, good fortune smiled on the institution with the announcement of a $20 million gift from Saudi Prince Alwaleed bin Talal, with the expressed purpose, in his own words, to “bridge the gap between East and West, between Christianity and Islam, and between Saudi Arabia and the United States.” The Prince, reputed to be the world’s fifth richest man and chairman of the Riyadh-based Kingdom Holding Co., has been intent on “bridging the gap” for some time now”
      • [Alwaleed] was, it will be remembered, the same individual whose intended $10 million gift to families of 9/11 victims was returned by then-Mayor Giuliani after the Prince off-handedly mentioned that the U.S. had to “reexamine its policies in the Middle East and adopt a more balanced stance toward the Palestinian cause . . . Our Palestinian brethren continue to be slaughtered at the hands of Israelis while the world turns the other cheek.” (http://www.hlrecord.org/2.4462/harvard-s-ethical-dilemmas-1.578902)
    • Harvard was simultaneously pursuing the United States military to the highest court in the land, and accepting a large donation from a regime that is one of the world’s worst human rights violators.
      • “… more thorny ethical issue for Harvard is how to justify taking a major gift – and agreeing to set up an entire Middle East research center – from a donor who is a member of the ruling family of a repressive, totalitarian, sexist theocracy. For instance, the “don’t ask, don’t tell” policy that the Law School could not abide on the part of the military is clearly a useful, and necessary, tactic in Saudi Arabia: in the Prince’s homeland, homosexuality is a capital crime and accused homosexuals have not only been shunned but have been beheaded. Since Sharia law allows punishment for “deviant sexual behavior” that ranges from imprisonment and flogging to death, other cases, including the conviction by a Jeddah court of alleged transvestites, have resulted in thirty-one men suffering 200 lashes each and multi-month prison terms. Four other men in the incident received two years’ imprisonment and 2,000 lashes.” (http://www.hlrecord.org/2.4462/harvard-s-ethical-dilemmas-1.578902)
    • Harvard Law School has a history of accepting donations from the Saudi royal family – there are currently three chairs endowed by Saudi Arabia, including one dedicated to the study of Islamic sharia law.
      • According to a 2005 Human Events analysis: “The King Fahd Chair for Islamic Shariah Studies began with a $5 million dollar donation by the Saudi royal family in 1993. Riyadh Daily reported: “The celebration was attended by Prince Bandar bin Sultan, Saudi ambassador to the United States, who was received by the Harvard University rector, the dean of law college and the first professor for the King Fahd Chair for Islamic Shariah Studies at Harvard University. In a press statement, Prince Bandar bin Sultan expressed his happiness over the establishment of the King Fahd Chair for Islamic Studies at Harvard University and commended the King’s efforts in supporting Islamic awareness.” Prince Bandar is the same man whose wife allegedly funds terrorism.

    The Chair itself is devoted, in the words of Custodian of the Two Holy Mosques Adjunct Professor of Islamic Legal Studies Frank Vogel, to “dissipat[ing] the ignorance of Islamic law, with its complex history of social, political, and religious change.”

    The Bakr M. Binladin Visiting Scholars Fund was created in 1994 by Osama Bin Laden’s brother, who donated at least $1 million in all probability. The fund is designed to bring “visiting scholars” to study law at Harvard; the “scholar” should be a citizen of a predominantly Muslim country.” (http://www.humanevents.com/article.php?print=yes&id=11161)

    The Saudi dictatorship has persistently been one of the most abhorrent persecutors of homosexuals in the world. According to the US State Department, “Homosexual activity is considered to be a criminal offense and those convicted may be sentenced to lashing, prison, or death.”

    The State Department’s “2009 Human Rights Report: Saudi Arabia,” released the following examples of human rights violations against homosexuals. The treatment of homosexuals is despicable, with two men recently convicted of “sodomy” and sentenced to 7,000 lashes in 2007:

    “Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity:

    Under Shari’a as interpreted in the country, sexual activity between two persons of the same gender is punishable by death or flogging. It is illegal for men “to behave like women” or to wear women’s clothes and vice versa. There were few reports of societal discrimination, physical violence, or harassment based on sexual orientation. There were no organizations of lesbian, gay, bisexual, and transgender persons. There was no official discrimination based on sexual orientation in employment, housing, statelessness, or access to education or health care. Sexual orientation could constitute the basis for harassment, blackmail, or other actions. No such cases were reported.

    On June 13, [2009] Riyadh police arrested 67 men from the Philippines for drinking and dressing in women’s clothing at a private party. According to their embassy, police released the men to their employers while charges were being processed.

    In 2007 the newspaper Okaz reported the public flogging of two men in the city of Al-Bahah after being found guilty of sodomy. The sentence was 7,000 lashes.

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