Elena Kagan and “Don’t Ask, Don’t Tell”

Elena Kagan and “Don’t Ask, Don’t Tell”

Like most Americans, Elena Kagan opposes the U.S. military’s ban on openly gay troops.  Unlike most Americans, she was once the dean of Harvard Law School, during which time she used rather blunt language in an e-mail to students and faculty about the controversy surrounding military recruiters on campus.  That e-mail will likely be the subject of intense questioning from the Senate Judiciary Committee this week during her confirmation hearing for a seat on the U.S. Supreme Court.

“This action causes me deep distress…I abhor the military’s discriminatory recruitment policy.  It is a profound wrong — a moral injustice of the first order,” Kagan wrote in 2003.  Her distress was caused by her decision to follow the law and allow recruiters on campus despite her personal reservations and the school’s clear policy forbidding recruiting by entities that discriminated on the basis of sexual orientation.

A coalition of law schools later sued the federal government over the Solomon Amendment, a law that withheld federal funds from schools that blocked military recruiters, but Harvard did not join the suit.  Instead, Kagan signed a brief along with some 50 other law school professors arguing the law was unconstitutional, noting she was not co-signing in her capacity as dean.

When the law schools prevailed in the U.S. Court of Appeals for the 3rd Circuit, Kagan briefly barred military recruiters from Harvard Law School, believing the court had confirmed the law was unconstitutional.  But the Supreme Court later reversed that decision, declaring unanimously that the law schools’ free speech rights had not been infringed.  Kagan then allowed the recruiters to return to campus.

An April Washington Post article on the issue summed up the flap over the issue:

At her confirmation hearing last year to become solicitor general, Sen. Jon Kyl (R-Ariz.) asked her about the issue. “Do you think if you’d been solicitor general when [the case] came to the court that you would have defended the statute?” he asked.

Kagan said: “There’s a clear obligation on the part of the solicitor general to defend the statute in that circumstance unless there’s no reasonable basis to argue for the statute. . . . Because I know the case . . . I feel comfortable saying, of course, there was a reasonable basis; I mean, my gosh, the Supreme Court ruled [unanimously]. So I absolutely would have defended that statute.”

Sorkin, the former leader of Harvard’s gay law students, said that while she was dean, Kagan never flouted the federal rule. “Ultimately, she understands we follow the law here even if we don’t agree with it.”