Kagan's Anti-DADT Stance Becomes Major Issue

While the fringe right and the gay press focus on whether Solicitor General Elena Kagan is a lesbian--the White House says she isn't--a potentially damaging, and far more mainstream, concern has been raised: Kagan having barred military recruitment at Harvard during her six-year tenure as the dean of the university's law school.

Colleges and universities around the country have come into conflict with the military over this point because the military's anti-gay policy requiring GLBT troops to keep quiet about their sexuality or face discharge violates the anti-discrimination policies many institutions of higher learning have put in place. Allowing military recruiters onto their campuses amounts to giving an anti-gay employer a free pass, even though that means setting aside anti-discrimination policies. If one anti-gay employer--the United States military--can be granted a pass, then what about an anti-gay employer from the private sector?

However, public perception about Kagan is unlikely to be that nuanced. Already, Kagan is being slammed in the press as "anti-military." Republican Sen. Jeff Sessions, asked about Kagan on CNN, sought to depict her as a Harvard administrator who implemented a policy to exclude military recruiters even as American servicemembers were dying by the thousand to "protect Harvard's right to exist."

"What happened was, a number of law schools, Harvard being, I think, a leader, when she was there, would not allow the military recruiters to come on to the law school to recruit JAG officers for the military because she didn't agree with the 'Don't Ask, Don't Tell' policy," said Sessions. "We had a thousand soldiers killed defending free speech and the right of Harvard to exist... during that period of time, so I think that that is something that would be asked [of Kagan during confirmation hearings]."

Sessions added that Kagan "felt that ['Don't Ask, Don't Tell'] was discriminatory, but it was the established policy of the United States... and she could work to change that, but I don't think it was acceptable... for her to say, 'You can't even come on our campus because I disagree with your policy.' "

Supporters of Kagan's nomination to the Supreme Court, which followed the announcement that John Paul Stevens would be stepping down, point out that Kagan remained within the law at every point, allowing military recruiters on campus when a federal law came into effect that would have denied funds from the U.S. Government to colleges and universities, and withdrawing that privilege from military recruiters when a federal court struck the law down. When the U.S. Supreme Court--the same bench to which Kagan has now been nominated--reinstated the law, Kagan allowed recruiters on the Harvard campus once more.

A May 11 Associated Press story that reported on Kagan's "precise" adherence to the law also carried a quote from Clinton-era Solicitor General Walter Dellinger, who said, "Elena Kagan does not have a single antimilitary bone in her body."

Moreover, the article noted, Kagan had not instituted the ban; she was simply following existing polices that had been put in place before her tenure, as her predecessor, Robert Clark, had also done. The ban came into effect in 1979, when Harvard put anti-discrimination policies into place that refused access to employers that did not protect GLBT workers.

A Clash of Policies

Robert Clark himself wrote on the controversy in a May 11 Wall Street Journal article, explaining that Harvard's official policy had been circumvented for years by student groups who took the initiative to invite military recruiters to the campus themselves, which was allowed under the university's policies. "In 2002, however, the Air Force took a hard line with Harvard," Clark wrote, "and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that 'prohibits or in effect prevent' military recruiting." Added Clark, "It credibly threatened to bring an end to federal funding of all research at the university," which would not have had much of an impact on the law school, but which would have been devastating to the medical school and to other elements of the university.

Harvard agreed to allow the military to recruit on the campus despite its anti-gay policy. Wrote Clark, "At the same time, I, along with many faculty and students, publicly stated our opposition to the military's policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military." When Kagan took over as dean of the law school, she issued a "memorandum" to explain why one anti-gay employer--the U.S. military--was being given access that other anti-gay employers were denied under the university's anti-discrimination policies.

However, Kagan also extended support and appreciation to individual military officers who were students at the university.

Kagan's gestures of support evidently are not well recollected in the present controversy. An April 19 article by Peter Beinart at The Daily Beast foresaw that Kagan's enforcement of Harvard's policy--as and when the law permitted it--could be used to tar her as "anti-military."

Beinart expressed appreciation for Kagan's repudiation of "Don't Ask, Don't Tell," the military's 17-year-old anti-gay policy. In 2003, Kagan wrote that, "I abhor the military's discriminatory recruitment policy," and called it "a profound wrong-a moral injustice of the first order." However, Beinart continued, Kagan's continuation of the longstanding policy of not allowing military recruiters on campus through official college administration channels was "stupid and counterproductive." Added Beinart, "I think it showed bad judgment."

Noting a streak of militarism in American culture, Beinart wrote, "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." Beinart went on to link the barring of military recruiters at many top colleges and universities with what he characterized as liberalism's self-destruction in the late 1960s. Those academic policies have had national reverberations, wrote Beinart: "Banning the military from elite campuses hasn't only helped generations of Nixons, Atwaters and Roves beat Democrats at the polls; it has also helped create a military that stands firmly on the red side of the culture war."

Beinart went on to say that at the turn of the 20th century, elite universities welcomed military recruiters so that the nation's fighting forces would be well educated and well rounded, without risk of a "military caste" being created over time. But when top-flight schools began to close their doors to recruiters, Beinart argued, the military's officer pool began to draw more extensively from "the campuses of the South and West," leading to a military mindset that is more conservative.

Some might disagree with this thesis; Clark wrote that in practical terms, military recruitment at Harvard was not much affected, because even if recruiters were barred from gaining access to the campus through the administration, they still had student groups as channels by which to get onto campus.

For that matter, there are also some indications that many heterosexual American servicemembers are not under the illusion that the military is a gay-free environment; indeed, openly gay officers like Marine Jeff Key have recounted that the troops with which they served knew that they were gay, but that the oft-warned of collapse of military morale and readiness never occurred. As Key's website notes, "His straight buddies in the Marines had always known that he was gay but said nothing because his commitment to them and to the country was never in question."

But those arguing against Kagan's nomination in the press also point out that while Kagan opposed Don't Ask, Don't Tell, she served in the Clinton administration--under which Congress first enacted the anti-gay policy in 1993. Moreover, declared William Kristol at The Weekly Standard in a May 10 article, "[I]t 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." Added Kristol, "It is intellectually wrong and morally cowardly to call this the 'military's policy.' " Kristol went on to note, "Many important people are complicit in what Kagan regards as the 'moral injustice of the first order' of Don't Ask, Don't Tell. The only ones Kagan sought to make pay a price were those serving the ranks of the military," evidently by denying military recruiters official administrative permission to come to the Harvard campus.