Correcting The Record On Elena Kagan And The Solomon Amendment

WASHINGTON – In remarks on the Senate Floor Wednesday morning, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) addressed distortions of Elena Kagan’s record in enforcing Harvard Law School’s antidiscrimination policy while she was serving as Dean. 

Leahy said, “Let us be clear about the facts.  At no time did Dean Kagan ban the military from Harvard’s campus.  That is a plain fact that has been verified repeatedly by Harvard’s veteran association and others.  Military recruiting occurred on the campus of Harvard Law School every year that Dean Kagan held her position.  Unfortunately, these facts will not prevent some critics from claiming that she kicked military recruiters off campus when she did no such thing.  This is not debatable.  The facts are the facts.”

The full text of Leahy’s prepared remarks follow.

Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Committee On The Judiciary
On The Nomination Of Elena Kagan

June 15, 2010

Full Statement, As Prepared

Our Nation recently celebrated Memorial Day, honoring the sacrifice and the service of our brave men and women in uniform.  Yesterday was Flag Day, and before too long we will celebrate the Fourth of July. 

I want to take a few minutes and set the record straight on charges being leveled at President Obama’s nominee to the Supreme Court, Solicitor General Elena Kagan.  Those intent on opposing this nomination, just as they are intent on undercutting President Obama at every turn, have searched high and low for a basis to oppose this intelligent and accomplished nominee. 

I understand their partisanship, but disagree with it.  I do not think it is good for the country.  After the American people elected President Obama, leaders of the Republicans urged massive resistance from the outset.  They have talked about wanting him to fail and have done everything they could to undermine his efforts to rescue our economy from the worst downturn since the Great Depression, to reform health care for all Americans, to lower taxes for Americans making less than $250,000 a year and to reform Wall Street so that we never again suffer the kind of greed and profiteering that put our economy at risk. 

When the Senator from Alabama became the ranking Republican on the Senate Judiciary Committee last year, he lamented the way nominees were treated.  He said:  “What I found was that charges come flying in from right and left that are unsupported and false.  It’s very, very difficult for a nominee to push back.  So I think we have a high responsibility to base any criticisms that we have on a fair and honest statement of the facts and that nominees should not be subjected to distortions of their record.”  I agree with that statement and very much regret the distortion of Dean Elena Kagan’s record as Dean of the Harvard Law School.  No one should have attacked her unfairly for following the law while seeking to honor Harvard’s nondiscrimination policy.  No one should be misrepresenting her views and smearing her character or questioning her commitment to our men and women in uniform.  Yet that is what has been happening repeatedly since her nomination.  Even Senators have repeated these attacks over and over in speeches on the Senate floor and in their statements to the media.  

Of course this was all considered last year in connection with her nomination to be Solicitor General.  I had hoped that when the Senate moved forward in bipartisan approval of that nomination and this attack on her had failed, that it was put to rest.  I would have thought and certainly had hoped that since the facts were known, misstatements would not be repeated.  Regrettably that has not been the case.  Instead, some continue to accuse her of anti-military bias and violating the law.  They say that she “barred the U.S. military from coming on the Harvard Law School campus,” that she “kicked the military off Harvard’s campus,” that she “disregard[ed] the law . . . in order to obstruct military recruitment during a time of war,” that she was punishing and taking actions against our military men and women, that she condemned the U.S. military, that she acted in a way that was “not lawful,” and that she “violated the law.”  Of course none of this is true.  It is not true now and it was never the case.

The unfair attacks that have been leveled at this nominee are all the more reason to give her the chance to respond anew and for her hearing to proceed without delay.  Anyone who has a sense of fairness would not be raising questions and contending they still have concerns while at the same time seeking to delay her opportunity to respond.  To be fair to her, we need to give her the earliest possible opportunity to answer.  Those who have been all too willing to attack this nominee during the last four weeks, and who purport to know her thoughts and her heart, should not be seeking to delay her opportunity to set the record straight and defend her character and good name.  Those who unfairly characterize her as anti-military and, in effect, anti-American and unpatriotic owe her the opportunity to respond.

Let us be clear about the facts.  At no time did Dean Kagan ban the military from Harvard’s campus.  That is a plain fact that has been verified repeatedly by Harvard’s veteran association and others.  Military recruiting occurred on the campus of Harvard Law School every year that Dean Kagan held her position.  Unfortunately, these facts will not prevent some critics from claiming that she kicked military recruiters off campus when she did no such thing.  This is not debatable.  The facts are the facts. 

What is debatable is the wisdom of the “Don't Ask, Don't Tell” policy.  In my opinion, the “Don’t Ask Don’t Tell” policy forces good and capable people to choose between compromising their integrity and being barred from military service.  At a time when we need a strong and skilled military more than ever, our existing policy makes the Armed Forces less effective.  As Admiral Mullen, Chairman of the Joint Chiefs of Staff, recently said, “allowing gays and lesbians to serve openly would be the right thing to do.”  I agree.  The current policy needlessly robs our Armed Services of the talents and commitment of countless people, and it should be changed.  Every member of our military should be judged solely on his or her contribution to the mission, without regard to sexual orientation. Rejecting the discrimination that results from the “Don’t Ask Don’t Tell” policy is long overdue.

Does this statement here on the floor of the Senate make me anti-military?  Of course not.  Does Admiral Mullen’s position on the policy make him anti-military?  Of course not.  Did Dean Kagan’s comments on the policy render her anti-military?  Not on your life.  Anyone at all familiar with her record knows better. Veterans from Harvard Law School have come to her defense.  They know and recall her support of them and their service to the country.  They know of the dinners and meetings she held with veterans.

In her speech at West Point three years ago she spoke of being in “awe of [their] courage and [their] dedication.”  She went on to speak directly to the issue, saying:

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools at odds, indeed, facing each other in court—on one issue.  That issue is the military’s “don’t ask, don’t tell” policy.  Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation.  And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans could join this noblest of all professions and serve their country in this most important of all ways.  But I would regret very much if anyone thought that the disagreement between American law schools and the U.S. military extended beyond this single issue.  It does not.  And I would regret still more if that disagreement created any broader chasm between law schools and the military.  It must not because of what we, like all Americans, owe to you. 

Those are not the words of someone who is anti-military.  She respects and honors our men and women in uniform.   She knows, as do I, that America is defended by the finest military in the world.  

But, she believed as do I that there should be no place in America, including in our military, for discrimination.  Repealing "Don't Ask, Don't Tell" will help ensure that we have a defense force that reflects our commitment to the fundamental principles upon which this country was founded.  We ask our troops to protect freedom in places around the globe.  It is time to protect their basic freedoms and equal rights here at home.

I commend the House of Representatives for passing legislation just last month to end this discriminatory policy, and the Senate Armed Services Committee for doing so, as well.  Congress is moving forward to adopt the policy of nondiscrimination that Harvard Law School had adopted and that Dean Kagan supported.  I have long supported similar legislation in the Senate.  I believe this is an important issue worthy of an up-or-down vote by the Senate.  Regrettably, like so many steps forward in legislation to protect equality throughout our history, the repeal of this discriminatory policy will likely be filibustered by a recalcitrant minority.

I also find it ironic that those Republican Senators most critical of the nominee have filibustered and voted against funding for our troops and against services for our veterans.  When the American people hear a Republican Senator criticizing Elena Kagan’s respect and support for the military, they might ask whether that Senator filibustered the National Defense Authorization Act for fiscal year 2010.  Led by the Republican leadership, more than 30 Republican Senators did.  Even after their filibuster was defeated, most Republican Senators proceeded to vote against the bill and the authorities it provided our military.  Likewise, when the Senate considered the consolidated appropriations bill to provide funding for veterans and military construction, again led by the Senate Republican leadership, more than 30 Republican Senators sought to filibuster and stall that funding.  Even when their filibuster was broken, more than 30 Republican Senators voted against that bill to provide the necessary funding for services to our veterans.        

Also obscured by the blinders worn by her critics are the following facts: Harvard Law School adopted its nondiscrimination policy in 1979, long before Elena Kagan ever attended Harvard Law School as a student let alone before she became an acting professor and ultimately its Dean.  Like almost every other law school in America, Harvard requires employers to sign a statement that they do not discriminate.  Only after an employer confirms its nondiscrimination employment policy and hiring practice can the employer use the logistical assistance of the Harvard Law School’s Office of Career Services (“OCS”).  This office merely facilitates recruitment by scheduling interviews and distributing student resumes to employers.  It does not provide physical space on campus for employers to conduct interviews.  In fact, private law firms typically conduct interviews off campus. 

In 1994, Congress adopted the “Don’t Ask, Don’t Tell” policy as part of the National Defense Authorization Act.  This law prohibited gays and lesbians from serving openly in our military.  Two years later, in 1996, Congress passed the so-called “Solomon Amendment” as part of the National Defense Authorization Act.  This statute allows Federal funds to be denied to universities that have “a policy or practice” that “prohibits, or in effect prevents” the military’s access to students on campuses for purposes of military recruiting.  In order to deny Federal funds under the Solomon Amendment, the Secretary of Defense must determine that a university has such a policy or practice, “transmit a notice [of such determination] . . . to Congress” and “publish in the Federal Register a notice of the determination and the effect of the determination on the eligibility of the [university] for contracts and grants.” 

The Solomon Amendment did not directly prohibit a law school from applying its nondiscrimination policy to military recruiters.  It did not make such an action a crime. The Solomon Amendment gave institutions a choice between satisfying the Secretary of Defense’s requirements on military recruitment or risk foregoing certain Federal funds.  Senator Sessions acknowledged this very point when he said last year, “well, let me say, that amendment didn’t order any university to admit anybody or to allow anybody to come on campus.”  In fact, it is not a criminal statute but an attempt to use the threat of a Federal funding cutoff as leverage.

In 1998, the Air Force determined that Harvard’s alternative arrangement for military recruitment facilitated by the HLS Veterans association, in lieu of OCS, complied with the Solomon Amendment.  In 2002, under the Bush administration, the Air Force reversed course and enter into a new and contradictory determination that the arrangement no longer satisfied the Solomon Amendment.  It threatened Dean Robert Clark, a Republican and Dean Kagan’s predecessor, with a cutoff of millions of dollars.  In response, Dean Clark “regrettably” allowed military recruiters to use OCS while continuing to emphasize his strong opposition to “Don’t Ask, Don’t Tell.”

In 2003, Solicitor General Kagan became the first woman to serve as Dean of the Harvard Law School when she succeeded Dean Clark.  For the first few years in this position she maintained the law school’s nondiscrimination policy that all employers, with the sole exception of the military, had to follow to use the Office of Career Services.  She continued to allow the military access to OCS, despite the fact that it could not sign a nondiscrimination statement.  However, she also repeatedly voiced her opposition to the “Don’t Ask, Don’t Tell” policy, as Dean Clark had, calling it “a moral injustice of the first order.”

Also in 2003, the Forum for Academic and Institutional Rights, Inc. (“FAIR”), an association of law schools, began a lawsuit challenging the Solomon Amendment and seeking a preliminary injunction enjoining its enforcement.  On November 5, 2003, the district court denied the injunction and FAIR appealed to the Court of Appeals for the Third Circuit.  On January 12, 2004, in her capacity as a law professor, Dean Kagan joined more than 50 other Harvard law professors to support an amicus brief backing FAIR’s appeal to the Third Circuit.  Unlike FAIR, which argued that the Solomon Amendment violated the First Amendment, the brief she joined made the more modest argument that the Department of Defense had misinterpreted the law.  The amicus brief argued:  (1) that the Solomon Amendment did not apply to generally applicable nondiscrimination policies, like Harvard’s, that did not specifically target the military; and (2) it only required that schools give military recruiters “entry” and “access,” not necessarily equal access.  

Noting the confusion surrounding the legal requirements of eligibility for Federal funding under the Solomon Amendment, Congress amended the statute in October, 2004.  The effect of those changes was not settled until the Supreme Court decided the case in 2006. 

On November 29, 2004, the Third Circuit concluded, 2-1, in an opinion joined by Reagan appointee Judge Walter Stapleton, that the “Solomon Amendment violates the First Amendment by impeding the law schools’ rights of expressive association and by compelling them to assist in the expressive act of recruiting.”  The Third Circuit’s opinion did not address the Harvard law professors’ amicus brief.

From the beginning of her tenure until November 30, 2004, Dean Kagan had allowed the military to use OCS.  Only after the Third Circuit concluded that the Solomon Amendment was unconstitutional did Dean Kagan return to Harvard’s prior policy of excluding the military from OCS.  However, like her predecessors, Dean Kagan continued to allow military recruiters entry to the campus and facilitated interviews on campus through the HLS Veterans Association.  This special arrangement was in place only for a few months in 2005.

In May 2005, the Supreme Court agreed to review the Third Circuit’s decision.  During that summer, while the Government appeal was pending, the Pentagon informed Harvard University that its Federal funds were in jeopardy if it continued to restrict military recruiters from OCS services.  The Pentagon never notified Congress nor published in the Federal Register that Harvard was not compliant with the Solomon Amendment. 

On September 20, 2005, Dean Kagan reinstated the military’s exception from Harvard’s nondiscrimination policy and again granted it access to OCS.  Dean Kagan’s decision to lift the military’s restriction from OCS was long before the Supreme Court held oral argument on December 6, 2005, or decided the case. 

The day after reinstating the military’s use of OCS, Dean Kagan was one of 40 Harvard law professors to sign onto an amicus brief to the Supreme Court.  As they did before the Third Circuit, the Harvard law professors argued that the Pentagon had misinterpreted the Solomon Amendment and that properly read, the amendment “rules out policies that target military recruiters for disfavored treatment, but it does not touch evenhanded antidiscrimination rules that incidentally affect the military.”  The Supreme Court rejected their argument.  On March 6, 2006, the Supreme Court also reversed the Third Circuit and upheld the constitutionality of the Solomon Amendment.

Let’s be clear on the facts of this issue.  Dean Kagan did not ban the military from Harvard’s campus.  Harvard law students always had access to the military recruiters.  The facts are that military recruitment remained steady throughout Dean Kagan’s tenure, and even increased during the brief time that the military was restricted from using OCS.

She did not break the law.  She did not violate the law.  She did her best to follow the law, even a law that led to discriminatory consequences with which she strongly disagreed.  She engaged in legal action and participated in a legal challenge to the interpretation and application of the law by the Bush administration that reversed an earlier interpretation by the Air Force. Yet this legal action is what some have claimed amounted to illegal conduct.  That is not fair.

I am confident that a fair reading of her record shows that Dean Elena Kagan was supportive of our military, veterans and Harvard law students who wished to serve in the military.  Let’s stop the misstatements and the overheated rhetoric, and let the Senate show Solicitor General Kagan the respect she deserves. 

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