Elena Kagan Email on the Solomon Amendment

Cite this Article
J.W. Verret, Elena Kagan Email on the Solomon Amendment, Truth on the Market (April 12, 2010), https://truthonthemarket.com/2010/04/12/elena-kagan-email-on-the-solomon-amendment/

A story in the WSJ Today describes how Elena Kagan is likely to face opposition based on her stance against the Solomon amendment, a law which denied schools federal funding if they failed to allow military recruiters on campus.  Dean Kagan, along with a number of other law school deans, challenged the law in Court and lost.  The article notes that Kagan has a scant record on which to determine her views, and the article also quotes an email she sent to the student body about the issue.  I thought I remembered that controversy, and so I looked through my old emails and found the emails described in the article.

It’s not exactly breaking news, but I thought it’s something readers may find of interest in light of the heated confirmation battle brewing for the summer.  For my view, she was a great Dean, very fair and helpful to the students active in the Federalist Society.  I also offer no view on the issue itself and try to reserve my opinions to financial regulation topics, but I invite readers to comment as long as it stays civil.  The full emails are below the fold.

To all members of the HLS community:

I write to let you know that this fall, the Office of Career Services (OCS)
will provide assistance to the U.S. military in recruiting students, as it
has done for most of the past three years.  This email gives newcomers to
our community some background on this issue, describes recent developments
affecting it, and states my own views on the matter.

The Law School’s anti-discrimination policy, adopted in 1979, provides
that any employer that uses the services of OCS to recruit at the school
must sign a statement indicating that that it does not discriminate on
various bases, including sexual orientation.  As a result of this policy,
the military was barred for many years from using the services of OCS.  The
military retained full access to our students (and vice versa) through the
good offices of the Harvard Law School Veterans Association, which
essentially took the place of OCS in enabling interviews to occur.

In 2002, the then-Dean of the Law School, Robert Clark, in consultation
with other officers of the University, reluctantly created an exception
from the law school’s general anti-discrimination policy for the
military.  The Dean took this action because of a new ruling by the
Department of Defense stating that unless the Law School lifted its ban,
the entire University would lose federal funding under a statute known as
the Solomon Amendment.  (This amendment denies federal funds to an
educational institution that “prohibits or in effect prevents” military
recruiting.)  The Law School’s own resources were not at risk: we do not
receive any of the kinds of federal funding that the Amendment threatens to
cut off.  The University, however, receives about 15% of its operating
budget from the federal government, with the Medical School and the School
of Public Health receiving by far the largest share of this money for
scientific and medical research.  The Dean determined (as did all other law
school deans) that he should make an exception to the School’s
anti-discrimination policy in the face of this threat to the University’s
funding and research activities.

I continued this exception in effect, for the same reasons, through the
2003 and 2004 fall recruiting seasons.  In the meantime, a consortium of
law schools and law school faculty members  (FAIR) brought suit challenging
the Defense Department’s policy on constitutional grounds.  Harvard Law
School is not a member of FAIR, but 54 faculty members, including me, filed
an amicus brief in that suit articulating different, statutory grounds for
overturning the Department’s policy.  In November 2004, the Court of
Appeals for the Third Circuit issued a decision in the FAIR case, holding
that the Defense Department’s policy violates First Amendment
freedoms.  The Supreme Court granted review of this decision; the Third
Circuit’s ruling is stayed pending the Supreme Court’s decision, which is
expected later this year.  (Much the same group of HLS faculty members,
including me, will file an amicus brief tomorrow in the Supreme Court
litigation.  I also understand that the University expects to join an
amicus brief filed by Yale and other universities.)  Although the Supreme
Court’s action meant that no injunction applied against the Department of
Defense, I reinstated the application of our anti-discrimination policy to
the military (after appropriate consultation with University officials) in
the wake of the Third Circuit’s decision; as a result, the military did not
receive OCS assistance during our spring 2005 recruiting season.  My hope
in taking this action was that the Department would choose not to enforce
its interpretation of the Solomon Amendment while the Third Circuit opinion
stood.  Over the summer, however, the Department of Defense notified the
University that it would withhold all possible funds if the Law School
continued to bar the military from receiving OCS services.  As a result, I
have decided (again, after appropriate consultation) that we should lift
our ban and except the military from our general non-discrimination
policy.  This will mean that the military will receive OCS assistance
during the fall 2005 recruiting season.

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.

Elena Kagan

Then in response to the news that their challenge was struck down, Dean Kagan sent the following email:

To members of the HLS community:

As most of you know by now, the Supreme Court in Rumsfeld v. FAIR yesterday
upheld the Solomon Amendment, as interpreted by the U.S. Government,
against legal challenge.  I am disappointed by this decision, which
rejected the statutory claim presented by a group of Harvard Law School
professors as amici, as well as the constitutional claim raised by
FAIR.  In the wake of this decision, Harvard Law School will continue to
provide Career Services assistance to the military, as the School does to
non-discriminating employers.  At the same time, I hope that many members
of the Harvard Law School community will accept the Court’s invitation to
express their views clearly and forcefully regarding the military’s
discriminatory employment policy.  As I have said before, I believe that
policy is profoundly wrong — both unwise and unjust — and I look forward
to the day when all our students, regardless of sexual orientation, will be
able to serve and defend this country in the armed services.

Elena Kagan

The students at the Harvard Law Record offered a clever critique of the email here.