New Ad Falsely Claims Solicitor General Kagan "Kicked The Military Off Campus" At Harvard

May 14, 2010 3:26 pm ET

On May 14, 2010, the conservative Judicial Crisis Network (formerly the Judicial Confirmation Network) released an ad opposing Solicitor General Elena Kagan's nomination to the Supreme Court.  The ad dishonestly claims that Kagan "kicked the military off campus" during her tenure as dean of Harvard Law School.  In reality, Kagan upheld longstanding university policy, facilitated military recruitment through the law school's Veterans Association, and complied with court rulings.

Judicial Crisis Network Has A "Crisis" Of Truth


Elena Kagan, who, as the Dean of Harvard Law School, kicked the military off campus - incredibly - during a time of war.

When Dean Kagan's legal argument attempting to keep the military off campus was presented to the very court President Obama would appoint her to, the Supreme Court unanimously rejected Kagan's argument.

America deserves better. [Judicial Crisis Network Ad, "Elena Kagan: America Deserves Better," 5/14/10]

Harvard's Military Recruitment Policy Had Been In Place Since 1979

Military Recruiters Have Accessed Students Through The Harvard Law School Veterans Association.  According to the New York Times: "Because of the military's policy against openly gay soldiers, the law school in 1979 barred military recruiters from using its Office of Career Services, the central clearinghouse through which employers from all over the world seek to recruit top-notch law students... Harvard reached its own accommodation in 1996. 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." [New York Times, 5/6/10]

The Solomon Amendment Revoked Federal Funding For Schools Who Barred Military Recruiters

2002: Solomon Amendment Expanded "To Say That All Federal Funds Could Be Revoked From An Entire University Even If Only One School, Like The Law School, Barred Recruiters." The New York Times reported: the mid-1990s, Congress approved several versions of the Solomon Amendment - named for Representative Gerald B. H. Solomon, a conservative Republican from upstate New York - denying federal funds to schools that barred military recruiters.

The amendment forced many law schools to carve out a military exception to their recruitment policies, which said they would not help employers that discriminated in their hiring practices...

The atmosphere changed after the terrorist attacks of Sept. 11, 2001. In stepping up its recruitment efforts, the Bush administration expanded Solomon in 2002 to say that all federal funds could be revoked from an entire university even if only one school, like the law school, barred recruiters.

Christopher Cox, then a Republican congressman from California who supported the move, said at the time that it was a scandal that Harvard and other schools banished military recruiters "while cashing Uncle Sam's checks for billions of taxpayer dollars."

The change meant that Harvard faced a loss of $328 million in federal funds, or about 15 percent of its operating budget, almost none of which went to the law school. [New York Times, 5/6/10]

Then-Dean Kagan Did Not Prevent Military Recruiters From Speaking To Students

While Joining Other Schools In Recruitment Ban, Dean Kagan Still Allowed Military Recruiters Access To Students Through Veterans' Group.  The New York Times reported: "Ms. Kagan did join more than half the faculty in January 2004 in signing an amicus brief when a coalition of law schools challenged Solomon in an appeal to the United States Court of Appeals for the Third Circuit, in Philadelphia. In November 2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional, saying it required law schools 'to express a message that is incompatible with their educational objectives.' The day after the ruling, Ms. Kagan - and several other law school deans - barred military recruiters from their campuses. In Harvard's case, the recruiters were barred only from the main career office, while Ms. Kagan continued to allow them access to students through the student veterans' group." [New York Times, 5/6/10, emphasis added]

Former Harvard Law Dean: Kagan Followed School Policy Already In Place.  Former Harvard Law Dean Robert C. Clark wrote in the Wall Street Journal: "As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on. For years, the U.S. military, because of its 'don't ask, don't tell' policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association. The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal." [Wall Street Journal, 5/11/10]

The Policy Did Not Hurt Recruitment Of Harvard Students.  As Media Matters for America has exclusively learned:  "The notion that military recruitment was adversely affected by Kagan's actions is contradicted by data Media Matters obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could only have affected the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes."

Number of Harvard Law School graduates who entered the military, by graduating class:

2000 -- 0
2001 -- 3
2002 -- 2
2003 -- 2
2004 -- 3

2005 -- 5
2006 -- 3
2007 -- 3
2008 -- 2
2009 -- 2

[Media Matters for America, 5/11/10]

After The Supreme Court Ruled Ban Unconstitutional, Dean Kagan Changed The Policy

Dean Kagan "Lifted The Ban" After Pentagon Directive And Supreme Court Decision.  According to the New York Times: "the ban lasted only for the spring semester in 2005. The Pentagon told the university over the summer that it would withhold 'all possible funds' if the law school continued to bar recruiters from the main placement office. So, after consulting with other university officials, Ms. Kagan said, she lifted the ban. After doing so, she and 39 other Harvard law professors signed an amicus brief urging the Supreme Court to invalidate Solomon. So did the university. They all received a dose of reality in March 2006 when the court ruled, 8 to 0, against them. 'A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message,' Chief Justice John G. Roberts Jr. wrote in the opinion. The ruling had little practical effect, since most universities, including Harvard, were in compliance. Despite the legal setback, Ms. Kagan continued to express her views, if less vocally." [New York Times, 5/6/10, emphasis added]

Dean Kagan Expressed Regret At The Military's Continued Practice Of Discrimination.  In her letter to the Harvard Law School community regarding the lifting of the recruitment ban, then-Dean Kagan wrote:  "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society - and the great service that members of the military provide to all the rest of us - heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country." [, 9/20/05, emphasis added]

Kagan Made The Distinction Between Service Members And Military Policies

Dean Kagan: "We Distinguish Between Those Who Serve Their Country And The Discriminatory Policy Under Which They Serve." The New York Times reported: "Capt. Kyle Scherer, 25, who graduated from [Harvard] law school last year and is now a military intelligence officer with the Army in Afghanistan, said by phone last month from Kabul that Ms. Kagan always supported students interested in the military. When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, 'we distinguish between those who serve their country and the discriminatory policy under which they serve.' Last year, when he was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain's bars on his shoulder." [New York Times, 5/6/10, emphasis added]

Dean Kagan: Don't Ask, Don't Tell Is "Terribly Wrong In Depriving Gay Men And Lesbians Of The Opportunity To Serve Their Country."  According to the New York Times: "in 2002, the law school, under Dean Robert Clark, relented and permitted the military recruiters in its placement office. Ms. Kagan became dean the next year and followed the same policy. But she also issued strong statements against 'don't ask, don't tell.' 'The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,' she said shortly after becoming dean at the law school's first reunion for its gay, lesbian and bisexual alumni. Later, as the issue intensified with protests on campus, she wrote in an e-mail message to students and faculty, 'I abhor the military's discriminatory recruitment policy.'" [New York Times, 5/6/10, emphasis added]