Kagan and military recruiters, redux

KAGAN AND MILITARY RECRUITERS, REDUX…. At this point, the right seems to have settled on their favorite argument to target Elena Kagan. The judicial experience line isn’t going anywhere, and the “defective Constitution” line ends up looking vaguely pro-slavery. What they’re left with is the story about Harvard Law School and military recruiters.

Erick Erickson, for example, described Kagan as “a woman who thought it constitutional and proper to throw the military off college campuses.” A variety of other conservative outlets and personalities — New York Post, Sean Hannity, Bill Kristol, Ed Whelan — have pushed the same line, almost word for word.

The problem, of course, is that the criticism is factually wrong, a detail her detractors either don’t realize or choose to ignore. Robert Clark, Kagan’s predecessor as the Harvard Law School’s dean, had an op-ed in the Wall Street Journal today setting the record straight.

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. In 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university. […]

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school’s nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military’s policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to “don’t ask, don’t tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

It’s only been a day, but at this point, the military-recruiters complaint already has the makings of the “wise Latina” story from last year — a dubious talking point the right loves, which is dismissed by those who bother to look into it and get the facts straight.