Records suggest Kagan played small part in settling Harvard-military dispute

Lawrence H. Summers took the lead.
Lawrence H. Summers took the lead. (Joshua Roberts - Bloomberg)
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By Amy Goldstein
Washington Post Staff Writer
Sunday, June 20, 2010

When Elena Kagan suspended help to military recruiters as dean of Harvard Law School, consternation inside the Pentagon reached all the way to then-Defense Secretary Donald H. Rumsfeld, according to government documents released Saturday. The records show that the controversy was resolved by Harvard's president with little apparent input from Kagan.

The documents also hint that Kagan, nominated by President Obama for the Supreme Court, and Lawrence H. Summers, the university's president at the time, might not have seen eye to eye on the sticky question of how firmly Harvard should object to military recruiting on campus. At issue was the military's ban on openly gay people serving in the armed forces, which violates the university's anti-discrimination policy.

In a spring 2005 e-mail, an Air Force representative said he had been "assured" that Harvard Law School would resume sponsoring military recruiters the next fall. Mark Weber, who oversaw the school's career services office, "expressed that though Dean Kagan had made her position (opposition) to military recruiting very clear, the university president felt differently," the e-mail said.

The e-mail is one of about 850 pages of documents about military recruiting at Harvard released by the Pentagon to the Senate Judiciary Committee, as the panel prepares for Kagan's confirmation hearings, scheduled to begin June 28. Her role in the military recruiting controversy has emerged as a central and partisan dispute in an otherwise tepid debate over whether Kagan, 50, deserves to join the nation's highest court.

Until now, it has been clear that Kagan halted the school's help to recruiters and announced months later that the help would resume. The documents show for the first time that the decision to resume was not primarily hers. Kagan was widely perceived to be close to Summers, now the White House's senior economic adviser, and when he resigned as Harvard's president, she tried unsuccessfully to succeed him.

Taken together, the documents shed fresh light on a period of several months during Kagan's six years as dean that has assumed outsized importance and has been the subject of criticism by some Republicans since her nomination to the court.

The period stretches from late 2004 to partway through 2005, the most heated time at Harvard in a long-running dispute there, and at other law schools, over how they should respond to a law known as the Solomon Amendment. Enacted by a Republican Congress in the late 1990s, it gives the Pentagon power to cut off universities' federal aid unless they allow military recruiters on campus.

When Kagan became dean in 2003, Harvard and most other schools permitted recruiting rather than risk forfeiting its federal funds.

But after a federal appeals court ruled in November 2004 that the Solomon Amendment was unconstitutional, Kagan wrote an open letter saying that the law school would no longer sponsor the recruiters. (The law ultimately was upheld by the Supreme Court.)

A few days after Kagan's letter was released, Rumsfeld fired off a one-page memo to William J. Haynes II, the Pentagon's general counsel at the time, about a news clipping about Kagan's move. "The attached article talks about Harvard Law School barring military recruiters on campus," Rumsfeld wrote. "What can we do about that?"

The newly released documents make clear that Pentagon officials, particularly from the Air Force, had been dealing for some time with Summers and attorneys for the university. More than a year before the federal appeals court opinion, they had been negotiating, as one Pentagon memo said, "seeking a mutually acceptable process to permit military recruiters" to be sponsored directly by the law school. A student group of military veterans, rather than the university, had been sponsoring the recruiting.

After the appeals court ruling in late 2004 -- and Kagan's decision to withhold the help -- the Air Force turned to Summers and the Harvard lawyers again. In June 2005, Harvard's chief counsel wrote a letter to the Pentagon confirming that the law school's careers services office would help the military recruiters.

It was one of many pieces of correspondence between Harvard and the Pentagon that contained no mention of Kagan. An internal Pentagon e-mail from more than a year earlier, for example, refers to a phone call involving Summers about a meeting between military officials and the university and says, "Houston, we have a change to 'Cambridge visit' plan." It explains that Harvard's general counsel would be traveling to Washington. And referring to the Defense Department, it says, ". . . we MIGHT offer DoD to Beantown in near future . . . to demo DoD interest if helpful/important to Dr. Summers."

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