By Amy Goldstein
Washington Post Staff Writer
Sunday, April 18, 2010; A03
Four months after becoming dean of Harvard Law School, Elena Kagan sent an e-mail to students and faculty lamenting that military recruiters had arrived on campus, once again, in violation of the school's anti-discrimination policy. But under government rules, she wrote, the entire university would jeopardize its federal aid unless the law school helped the recruiters, despite the armed forces' ban on openly gay members.
"This action causes me deep distress," Kagan wrote that morning in October 2003. "I abhor the military's discriminatory recruitment policy." It is, she said, "a profound wrong -- a moral injustice of the first order."
Her stance put Kagan squarely in sync with professors at Harvard and other law schools -- and wholly out of sync with the Supreme Court, which later ruled unanimously that the schools were wrong. Four years after that ruling, Kagan, now the U.S. solicitor general, is a leading candidate to succeed retiring Justice John Paul Stevens. Conservatives have signaled that if President Obama nominates her, her stance on this issue -- like perhaps no other in her career -- dangles as ripe fruit that opponents would grab to thwart her confirmation.
"For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. 'Moral injustice of the first order' would seem fit for something like the Holocaust," said Ed Whelan, president of the conservative Ethics and Public Policy Center. "This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press."
Strong as her language was in that e-mail, Kagan's writings and actions -- and interviews with people involved at Harvard and beyond -- show she was far from a central player in the dispute.
Kagan was not yet dean when the controversy arose. Harvard never joined the coalition of law schools whose lawsuit against the Pentagon went to the Supreme Court. Under her leadership, Harvard Law School did not resist the government as strenuously as some other institutions. And, while she continued through nearly six years as dean to express her disagreement with the federal rules, she softened her language over time.
"I wouldn't describe her as a leader on the issue by any means," said Adam Sorkin, a leader of the gay students group Harvard Law School Lamba when the issue was most heated.
"Harvard as an institution got involved late," said Sorkin, 27, now a lawyer in Chicago.
Kagan declined through a Justice Department spokeswoman to comment.
The dispute is rooted in a collision between the military's "don't ask, don't tell" rule and policies at Harvard and nearly every other law school, which deny help in recruiting students to any employer that discriminates in hiring. The conflict intensified when Congress and the Pentagon said that under the Solomon Amendment, federal money could be revoked from a university if any part of it failed to help recruiters. In 2002, the year before Kagan became dean, Harvard and nearly all other law schools relented, providing recruiting help to the Pentagon.
Law schools began to sue. The largest case, brought by a coalition of 36 law schools calling themselves the Forum for Academic and Institutional Rights, went to the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, which ruled that the federal rule was unconstitutional because it interfered with the schools' free-speech rights. George W. Bush's administration appealed to the Supreme Court, which, in March 2006, decided 8 to 0 against the law schools, saying the Solomon Amendment did not undermine students' and professors' speech because they still were free to protest the rule.
Although Harvard did not join FAIR, many of its professors filed a brief with the 3rd Circuit and another with the Supreme Court, siding with the coalition but offering different legal grounds. Kagan, with many others, signed on both times. More than 50 of 81 Harvard law professors joined in the first brief, and 40 of 81 in the second. Walter Dellinger, a veteran Supreme Court lawyer who wrote the briefs for the Harvard professors, said, "I do not believe Elena made any comment on the brief at all in the drafting process." She requested a footnote saying she was participating as a professor, not as the dean.
The association representing law schools also filed briefs, as did professors at other schools.
"Given how far left [politically] the law schools are, I don't see it as somehow vindicating her that she wasn't farther out than a lot of other deans," Whelan said. "The context that matters most is the 8-to-nothing Supreme Court rejection of the entire challenge -- how far to the left she was of [Justices] Stevens, [David] Souter, [Ruth Bader] Ginsburg and [Steven G.] Breyer" -- the court's more liberal members.
In 2004, after the 3rd Circuit said the federal rule was unconstitutional, Kagan had reinstated the school's nondiscrimination policy for military recruiters; the school's career office did not help them that fall. But once the Supreme Court took the case -- months before its ruling -- Kagan reversed course. Other schools held out longer. Yale Law School denied the Pentagon until 2007, while its professors pursued a separate lawsuit on the issue.
At her confirmation hearing last year to become solicitor general, Sen. Jon Kyl (R-Ariz.) asked her about the issue. "Do you think if you'd been solicitor general when [the case] came to the court that you would have defended the statute?" he asked.
Kagan said: "There's a clear obligation on the part of the solicitor general to defend the statute in that circumstance unless there's no reasonable basis to argue for the statute. . . . Because I know the case . . . I feel comfortable saying, of course, there was a reasonable basis; I mean, my gosh, the Supreme Court ruled [unanimously]. So I absolutely would have defended that statute."
Sorkin, the former leader of Harvard's gay law students, said that while she was dean, Kagan never flouted the federal rule. "Ultimately, she understands we follow the law here even if we don't agree with it."