About Those "Errors" In Your Kagan Testimony, Sen. Sessions...

August 03, 2010 3:40 pm ET

In his floor speech this morning opposing Solicitor General Elena Kagan's nomination to the Supreme Court, Sen. Jeff Sessions (R-AL) "ask[ed] and challenge[d]" Kagan supporters "to point out any errors in my remarks as we go forth so that we can, above all, get the facts straight." He then launched into an account of Harvard Law's policy toward military recruiters during Kagan's tenure as dean which contained errors of fact. We submit to Sen. Sessions' attention that then-Dean Kagan did not in fact bar recruiters from the campus (as he twice said she did this morning), and that his insistence that anti-gay discrimination in the armed forces is a matter of law and not military policy is misleading at best.

Sen. Jeff Sessions: Prohibition On Military Service For Homosexuals Is An Act Of Congress, Not A Military Policy

SEN. SESSIONS: Madam President, the United States military did not have a policy called "Don't Ask, Don't Tell." That was a law passed by the US Congress and signed by president Clinton and it was the law of the land. And it was not their choice. They followed, saluted, and did their duty.... She didn't seem to complain about the policy when she worked for President Clinton, who signed the law. But she punished the men and women who were preparing to serve and defend our country and Harvard's freedom to carry on whatever these silly activities they wanted to carry on. This was not a little-bitty matter.

Military Policy Has Denied Homosexuals The Right To Serve Throughout American History

Throughout our history, U.S. military policy has been to expel gay soldiers as soon as their sexuality is identified — or to bar them from serving entirely if their sexuality can be identified ahead of time. While  Sen. Sessions is correct insofar as the policy called "Don't Ask, Don't Tell" was created by Congress, his statement implies that discrimination against homosexuals in the armed forces originated with Congress and President Clinton. That is wildly misleading.

The Continental Army Expelled A Soldier For "Homosexual Acts" In 1778. According to Human Rights Watch: "The first known case of a soldier being discharged from the U.S. military for homosexual acts took place in February 1778:  Lt. Gotthold Frederick Enslin was court-martialed after being discovered in bed with another soldier, and he was expelled from the Continental Army by order of Gen. Washington." [HRW.org, accessed 5/16/10]

Military Recruiting Policy Was Revised During World War II To Allow Rejection Of Recruits Based On Psychiatrist's Determination Of Sexual Preference. According to University of California at Davis professor Gregory Herek: "As the United States prepared for World War II, psychiatric screening became a part of the induction process and psychiatry's view of homosexuality as an indicator of psychopathology was introduced into the military. Instead of retaining its previous focus on homosexual behavior, which was classified as a criminal offense, the military shifted to eliminating homosexual persons, based on a medical rationale. In 1942, revised army mobilization regulations included for the first time a paragraph defining both the homosexual and 'normal' person and clarifying procedures for rejecting gay draftees." [Psychology.UCDavis.edu, accessed 5/16/10, emphasis original]

1981: Defense Department Codified Prohibition On Gays In The Military. According to UCD professor Gregory Herek: "In 1981, the DOD formulated a new policy which stated unequivocally that homosexuality is incompatible with military service (DOD Directive 1332.14, January 28, 1982, Part 1, Section H). According to a 1992 report by the Government Accounting Office (GAO), nearly 17,000 men and women were discharged under the category of homosexuality in the 1980s." [Psychology.UCDavis.edu, accessed 5/16/10, parentheses original]

1993: Congress Responded To President Clinton's Attempt To End Ban On Gays By Codifying "Long-Standing Defense Department Policy Stating That Homosexuals Are Not Eligible For Military Service." According to the Center for Military Readiness: "In 1993 members of Congress gave serious consideration to a proposal known as 'Don't Ask, Don't Tell,' which was announced by President Clinton on July 19, 1993.  The concept suggested that homosexuals could serve in the military as long as they didn't say they were homosexual... Instead of approving such a convoluted and legally-questionable concept, Congress chose to codify Defense Department regulations that were in place long before Bill Clinton took office. The resulting law, identified as Section 654, Title 10, continued the long-standing Defense Department policy stating that homosexuals are not eligible for military service. Following extensive debate in both Houses, the legislation passed with overwhelming, veto-proof bipartisan majority votes. In writing this law, members wisely chose statutory language almost identical to the 1981 Defense Department Directives regarding homosexual conduct, which stated that 'homosexuality is incompatible with military service.'  Those regulations had already been challenged and upheld as constitutional by the federal courts." [CMRLink.org, 8/22/08, italics original, emphasis added]

Sen. Sessions: Then-Dean Kagan "Barred" Military "From The Campus At Harvard"

SEN. SESSIONS: One of the more serious issues that's been discussed quite a bit is the nominee's handling of the united states military while she was dean at Harvard. She reversed harvard's policy, and she banned the military from the campus recruiting office. [...] Yet Ms. Kagan barred them from the campus at Harvard. And on four different occasions, this Congress passed laws to try to ensure that our military men and women at a time of two wars was not discriminated against on college campuses in this country. One of them was shortly before, a few months before, finally we, it was written in a way they could not figure a way to get around it. Shortly before she barred them from the campus. Subjecting Harvard to loss of federal funds, which resulted in the military, when they finally realized that she'd reversed this policy and found out they'd been stonewalled and the front door of the university had been closed to them, they appealed to the president of Harvard University and he reversed her position. It was not justified. It was wrong. It should not have been done.

Military Recruiters Were Welcome On The Law School Campus Throughout Then-Dean Kagan's Tenure

The Military Recruited On The Harvard Law School Campus, Including In Classrooms, Throughout Solicitor General Kagan's Tenure There. According to the National Journal:

Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school's approval.

Kagan did for a time deny the assistance of the law school's Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school's policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.


However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

[National Journal5/15/10, emphasis added]

Military Recruiters Have Accessed Students Through The Harvard Law School Veterans Association Since 1996.  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 Times5/6/10]

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 Times5/6/10, 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 Journal5/11/10]

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]

Dean Kagan Provided Recruiters Access To Official Recruiting Office 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 Times5/6/10]

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." [Law.Harvard.edu, 9/20/05, emphasis added]