One meme that has emerged on the front lines of the upcoming nomination fight over Elena Kagan for the Supreme Court is that she is “anti-military”. The argument goes something like this: While Dean of Harvard Law School, Kagan expressed strong opposition to the “don’t ask, don’t tell” policy that bars homosexuals from serving openly in the U.S. military. To implement her views while still complying with the Solomon Amendment (which requires all schools receiving federal funds to allow military recruiters access to students that is equal to that given to any other employer), Kagan barred military recruiters from using Harvard’s career services office, but allowed them equal access to facilities through Harvard’s student group for veterans.
Is it is a morally and legally questionable move to implement, in effect, a “separate but equal” policy for access by military recruiters that keeps the school officially hands-off by dumping the portion of the job that would be done by paid career services staffers on to unpaid students who lack the tools for the job? Definitely. Is it “anti-military”? Not even close.
Writing in the New York Times, one veteran testifies quite the opposite from first-hand experience. My own experience at a top-tier law school is similar. Most law school administrators tend to have a decidedly progressive leaning and their opposition to DADT is heartfelt. Prodded by well-organized student activists including the national law student group Outlaw, they make a yearly ritual of condemning DADT during recruiting time in mass emails to law students that tacitly encourage students to undertake protests that harass the recruiters in the hallways. Their desire — misguided as though it may be (those recruiters don’t set policy and most of them dislike DADT as well because it makes their jobs harder) — is to find some way of effectively asserting pressure for change in spite of the strictures of the Solomon Amendment, not to condemn the military as a whole. As experts in the law, they are generally well aware of the difference between those who make the law and those just tasked to implement and enforce it.
These protests can be seen as an indulgence and possibly even a questionable use of their official position to take partisan views or to tacitly encourage harassment of recruiters just trying to do their jobs. But many of those same law schools, including Kagan’s, include student organizations for veterans that receive just as much recognition and support as Outlaw or any other student group does. And, apart from what the Merrill noted in the Times as “the occasional dumb question”, the attitude from other students, the faculty, and the administration is one of support for public service that includes the military without unusual reservations. The faculty at top law schools may be overwhelmingly left-leaning and even negative towards military and national security policy, but there is no sign I have ever seen that they take it out on any students who are veterans.
And there is no evidence that Kagan did either.