Kagan, as Harvard law school dean, pursued two courses on 'don't ask' policy

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.
By Amy Goldstein
Washington Post Staff Writer
Friday, May 28, 2010

Elena Kagan picked up her phone just before Christmas 2004 and, in an uncharacteristic moment as Harvard Law School dean, dialed the home number of a third-year student. She asked him, a leader of a tiny club of military veterans, to come by her office, where she broached the touchy matter of military recruiting on campus and made a surprising request.

Because the law school had just stopped sponsoring recruiters from the armed services, Kagan said, she hoped the veterans club would arrange recruiting interviews to fill the gap. But the request was more than the few veterans on campus would embrace. After an intense debate, the Harvard Law School Veterans Association turned her down, according to three people who were in the room, deciding that -- as one put it -- "we are basically students, not recruiters."

The little-known episode illustrates that, at the time when the issue was most feverish, Kagan was pursuing two courses at once: While staking out a tough stance against the recruiting, because of the military's ban on gay men and lesbians serving openly, she simultaneously maneuvered to facilitate it behind the scenes. Those watching her up close were divided over whether she was hedging on hard choices or simply trying not to antagonize rival campus factions.

Now that President Obama has nominated Kagan to the Supreme Court, her attitudes about the military while dean have emerged as a prominent issue, which her conservative critics are wielding to try to thwart her confirmation. But her interactions with the small cadre of Harvard law students affiliated with the military suggest that the talking points of Kagan's Republican critics and her Democratic defenders distort history to some degree.

Sen. Jeff Sessions (S.C.), the ranking Republican on the Senate Judiciary Committee, which will conduct her confirmation hearings, has repeatedly accused her of an anti-military bias and of breaking the law. Veterans who were on campus, however, and many legal experts say that neither is quite accurate.

And Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) has said that "recruiting went on at Harvard every single day through the time she was there." Yet recruiters were not officially sponsored on campus in the spring of 2005, after Kagan changed the policy.

Kagan declined through a White House spokesman to comment.

Amid the tangle of political half-truths, eight Harvard law graduates interviewed for this article, all of whom were veterans or preparing for active duty at the time, offer a third view. They say that Kagan separated her intense opposition to the military's "don't ask, don't tell" policy from her direct interactions with them. All but one have never before described these matters publicly. Most are now military lawyers or in other government roles and were forbidden by their employers to discuss a Supreme Court nominee except on the condition of anonymity.

"I didn't think she demonstrated any bias by doing what the university required her to do" regarding the recruiters, said Lt. Col. Robert Bracknell, who was 35, already a lawyer and had been in the Marines for 15 years when he spent 2005-06 at the law school earning a master's degree. "I found her to be very . . . interested in what I had to say."

Kagan inherited the recruiting controversy when she became dean in 2003. The issue confronted many law schools, which viewed the military's "don't ask, don't tell" rule as violating campus anti-discrimination policies. But if they did not help the recruiters, the schools would risk losing federal aid. Like most law schools, Harvard was sponsoring recruiters, although Kagan was outspoken in objecting to the policy on gays. A coalition of law schools, not including Harvard, had filed suit. In November 2004, the U.S. Court of Appeals for the 3rd Circuit said the law linking federal aid to recruiting help was unconstitutional. Kagan announced that Harvard would no longer provide such help.

Boston College law professor Kent Greenfield, who founded the law school coalition, which ultimately lost its case at the Supreme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track.

In Harvard's largely liberal environment, the issue was polarizing for a few years but did not pervade the law school. Lambda, a gay student group, occasionally painted toy soldiers pink and placed them on every seat in classrooms to protest "don't ask, don't tell" and the recruiting. Only a smattering of students had military connections: veterans, students who owed military service because of ROTC scholarships, a few on active duty who were being paid by the military to become lawyers. Some of them said they, too, disliked the ban.

In fall 2004, knowing that the 3rd Circuit would soon rule, Kagan offered to discuss the issue with the veterans association, which was primarily a social club that seldom had more than a dozen members.

One alumnus, at the time a few months into his first year of law school, remembers asking the dean whether the law linking federal aid to military recruiting might have an analogy: the Federal Highway Administration did not give states money if their legal drinking age was lower than 21. The students broke into laughter. Kagan bristled, saying that never before as dean had she felt mocked, according to several people who were there.

"The room dropped several degrees, and we had to sort of defuse the situation," said the student, who was a leader of the group and is now a federal employee. He assured Kagan that the laughter was not directed at her.

It was soon after the 3rd Circuit ruling that, home sick one day, the student received Kagan's call. Alone with the dean for 20 minutes in her glass-walled office, he recalls, he told her he needed to consult with the club's members about her request that they sponsor the recruiters, as the club had done in the past.

On the winter night when they debated what to do, some argued for helping the recruiters, saying the military needed the best-trained lawyers in a time of war. One alumnus said he countered that Kagan should not oppose military recruiting and the ban on gays, then look for another route to let recruiters in. "I didn't want to make my first act at law school ushering in the military through the back door," said the former student, who supports Kagan's nomination. "If you are going to take a stand against it, take a stand against it. . . . Don't play games."

In the end, the club decided its members would welcome questions from students considering military careers but would not do more. "We took the request in good faith and, at the end of the day, thought, 'Hey, the military has its own recruiters,' " the former leader said.

Kagan's decision -- and that of the veterans group -- had no impact on the number of people entering the military. In that spring of 2005, five graduates joined, more than any other year of the decade, according to Mark Weber, assistant dean for career services.

Ellen Cosgrove, the law school's dean of students, said the chapter "was very difficult for Elena" and added: "This was a decision you can't win. You are either going to alienate the gay students and everyone who was sympathetic to their cause, or the veterans and those students who are sympathetic to their cause."

Cosgrove remembers Kagan telling her: "I want to do stuff to make the students feel that Harvard supports them, supports their service to the country." In fall 2006, Kagan inaugurated an intimate dinner with the veterans, held annually on Veterans Day until she left Harvard.

In fall 2006, a veteran was a finalist in Harvard's Ames Moot Court competition. Supreme Court Justice Anthony M. Kennedy was a judge.

At a dinner before the arguments, Kennedy spoke with a student preparing to be a military lawyer and reminisced about his own time in the California National Guard. As they took their seats, a former officer of the veterans association recalls, he heard Kennedy lean over to Kagan to say that he hoped she took care to recognize the law school's veterans. The dean assured the justice that she did.

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