Don’t Ask, Don’t Tell, Don’t Rock the Boat

Kagan’s position on military recruiters at Harvard was hardly radical.

Also in Slate, Dahlia Lithwick explains why the inscrutable Kagan makes everyone nervous. John Dickerson wonders how Kagan will convince America she has a special understanding of ordinary people. Jack Shafer yearns to see an openly gay Supreme Court nominee.

Elena Kagan and Barack Obama

What did Elena Kagan do about the military’s “Don’t Ask, Don’t Tell” policy when she was dean of Harvard Law School? At the Daily Beast, Peter Beinart says Kagan barred military recruiters from campus and that she should apologize. The National Review’s Ed Whelan slams her for using “strikingly extreme rhetoric” in opposing the policy.

Given how good Kagan is at playing the Sphinx, commentators are closely examining this apparent chink in her armor of inscrutability for clues to her true identity (sexual as well as political). Beinart writes that Kagan shows her true stripes and that they are anti-military. Whelan says she’s probably biased in favor of gay rights. If you dig into what Kagan actually did at Harvard, though, along with the legal brief she signed in a related suit, her actions look more mild than forceful. The real, if boring, insight here may be about her endless capacity for tacking and for compromise. Even about an issue that clearly mattered to her, she was first and foremost an institutional player.

When Kagan became dean of Harvard Law School in 2003, she criticized “Don’t Ask, Don’t Tell,” calling it “terribly wrong.” But she left in place a compromise that the law school made with the military before she arrived. As the New York Times explains in helpful detail, the law school did bar military recruiters from using its Office of Career Services in 1979. In the 1990s, Congress pushed back with the Solomon Amendment, which said that no Department of Defense funds would go to universities that barred military recruiters from “entry to campuses or access to students on campuses.” Harvard backed down halfway: As the NYT relates: “While the school did not allow military recruiters to use its main placement office, it did allow them on campus through the Harvard Law School Veterans Association, a student group. The recruiters met with students in the same classrooms, just under different sponsorship.”

Other law schools made similar accommodations. But after 9/11, Congress decided they weren’t good enough. Unless the law school gave the military “equal” access, Congress was prepared to deny the university as a whole $328 million in federal funds. With that much at stake, it wasn’t much of a contest. In 2002, Kagan’s predecessor as dean, Robert Clark, let the recruiters into the law school’s placement office. Kagan did the same thing when she took over in 2003. In short, she never barred a military recruiter from campus. These facts make Beinart’s notion that she should apologize seem weirdly heavy-handed.

Kagan did talk a bold game, as Whelan points out. “I abhor the military’s discriminatory recruitment policy,” she wrote in an e-mail to the law school in 2003. “This is a profound wrong—a moral injustice of the first order.” Kagan continues, “And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.” But behind the talk was an accommodation that the law school made to allow the university to keep its federal funding.

Meanwhile, an association of law schools calling itself FAIR (Forum for Academic and Institutional Rights) sued over the Solomon Amendment. The law schools argued that the statute was unconstitutional because it violated their First Amendment rights of free speech and free association, by forcing them to associate with the military recruiters.

Harvard did not join the suit. Instead, Kagan and 39 other professors signed onto an amicus brief. Eight other universities filed briefs, along with 56 Columbia law professors and 44 Yale law professors. Inside the academy, practically everyone wanted on this bandwagon.

Now that “Don’t Ask, Don’t Tell” is on its way out (however slowly), with Republicans like Defense Secretary Robert Gates opposing it, it’s hard to recapture how fervent this discussion was in the faculty lounges of America’s elite law schools. But fervent it was. And it wasn’t just gay professors who wanted to make this show of support, or who even led the way.

In 2005, a federal appeals court ruled that the Solomon Amendment was unconstitutional. Kagan went back to Harvard’s pre-2002 rule: Military recruiters met with students through the student veterans’ association rather than the law school’s career-placement office. Again, this looks more like an accommodation than like a radical rejection of the military. Some gay-rights advocates on campus were disappointed and felt betrayed.

As for the brief that Kagan signed in the case, it was designed to offer the court a middle path between FAIR’s claim that the Solomon Amendment was unconstitutional and the Department of Defense’s position that Solomon was in all ways wonderful. Written by former solicitor general and Slate contributor Walter Dellinger, the brief argued that “in the best traditions of judicial restraint,” the Supreme Court didn’t have to decide the constitutional question at all. Instead, the court could find that the accommodations to military recruiters provided by schools like Harvard complied with the amendment. Solomon required the schools to give the recruiters access to facilities and students “in a manner that is at least equal in quality and scope” to what other employers got, the brief argued. The schools were being entirely evenhanded because they were applying their nondiscrimination policy to the military the same way they applied it to everyone else. “The government is demanding far more than equality of treatment,” the amicus brief said. “It is insisting on being given a special exemption from evenhanded antidiscrimination policies.”

Yes, there is that word again: evenhanded. It appears in the brief 15 times. Judicial restraint, evenhanded antidiscrimination policy—these phrases are all about signaling that the signers of the brief are reasonable, moderate, unobjectionable. Never mind that this approach didn’t work. By a vote of 8-0, the Supreme Court ruled against FAIR, rejecting the amicus brief’s arguments. It didn’t matter why the law schools were treating the military recruiters differently from other employers’, the court said. The fact was that they were. As Chief Justice John Roberts wrote for the court (italics his): “The Solomon Amendment does not focus on the content of a school’s recruiting policy, as the amici would have it. Instead, it looks to the result achieved by the policy.” So much for the nice middle path.

Whelan writes that Kagan’s stance isn’t about pragmatism but, rather, “cheap and contemptible moral posturing.” If she really believed “Don’t Ask Don’t Tell” was wrong, then why did she go along with the compromise that let Harvard keep its federal funding? That’s the problem with the middle ground: It’s not pure. You can criticize the law schools for buckling under when their universities were faced with the loss of hundreds of millions in federal funds, but, really: What realistic choice did they have?

My Slate colleague Timothy Noah also points out that the schools were punishing the military for a congressional statute. Why not tell recruiters for the Department of Justice and other departments of the federal government that they had to abide by the same rules as the military? Fair enough. But it’s also a criticism devoid of context. Kagan was not alone in conceiving of the fight in the terms that she did. And in the end, what she did as dean is as indicative, or more, as what she said as dean.

In announcing his choice, Obama said that he wants Kagan to be a seeker of common ground on the high court. Kind of like him—at least, like the way he likes to present himself. It’s almost as if, faced with the debate over the Solomon Amendment when she was dean, Kagan asked herself a question that would not become popular until years later: What would Obama do?

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