The latest attack on Elena Kagan of a LGBT nature was the fact that she was the Dean of Harvard Law School when the Bush Administration changed the financial aid rules to place military recruiters on campuses that had non-discrimination policies. The new rules would prevent these institutes of higher learning from receiving any Federal funds if their non-discrimination policies restricted employers that discriminated against LGBT individuals. Apparently the fact that this professor was the Dean at the law school at the time and found the non-discrimination policy to be reasonable is sufficient reason for Conservatives to be wary of her ideology.
From the Harvard Faculty Directory Elena Kagan
Dean of the Faculty of Law, 2003-2009
.
The policy at Harvard Law School at the time had been in place since 1979. Well before she had become Dean of the campus. When this legal obstacle was placed in contradiction of the law school's values the school did the moral thing and fought for the rights of those that were being disenfranchised. Dean Kagan made the morally upright decision to block employers that did not accept LGBT students as potential employees.
November 2004 decision to bar Pentagon recruiters from using the law school’s Office of Career Services. For most of the last 26 years, the office has only provided its resources to recruiters who promise not to discriminate against gay and lesbian employees and job applicants. The Pentagon’s “don’t ask, don’t tell” policy prohibits gays and lesbians from serving openly in the military.
The fact that this policy was in place well before the Federal government changed the funding rules dosen't deter some Republicans from placing blame on Kagan.
Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, told ABC News' "This Week" that Supreme Court nominee Elena Kagan "violated the law" by not allowing military recruiting on the Harvard Law School campus when she was dean there, and added the issue is "no little-bitty matter."
This was not about not supporting the military or being liberal, it was about standing up for the rights of students that would not be provided the same opportunity for employment as heterosexually identified students. This was not a radical change in policy in order to thwart the desires of politicians bent on creating a well fed war machine, simply a well considered policy designed to bring the most to Harvard Students. It was the laws themselves that changed bringing about this conflict between right and wrong and Dean Kagan was simply the leader standing up for her school.
From the PDF produced by the Congressional Research Service Military Recruitment on High School and
College Campuses: A Policy and
Legal Analysis
These laws include the No Child Left Behind (NCLB) Act of 2001, which amended the
Elementary and Secondary Education Act (ESEA) by requiring high schools that receive federal
funds to provide certain student contact information to military recruiters upon request and to
allow recruiters to have the same access to students as employers and colleges. This provision is
different from similar Department of Defense (DOD) provisions that allow DOD to compile
directory information on high school students for military recruitment purposes and that require
colleges and universities that receive federal funds to give military recruiters the same access to
students and campuses that is provided to other employers. Known as the Solomon Amendment,
the latter provision was upheld as constitutional by the Supreme Court in the 2006 case Rumsfeld
v. Forum for Academic and Institutional Rights (FAIR).
In a common sense move the administration and faculty there decided to relent because the Federal funding would not only be removed from the law school but all schools at the Harvard campus. In a well worded Letter to the Harvard Law School community Dean Kagan expressed the decision and why it was made to allow discriminatory recruiters on campus.
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 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.
This change in along standing campus policy was not received as the best news for academic freedom or equitable treatment by those on campus.
Lambda President Jeffrey G. Paik ’03 released a statement tonight calling the Department of Defense’s enforcement of the Solomon Amendment “reprehensible,” but applauding Kagan for “the courageous action she took last November.”
Lambda’s treasurer, Adam R. Sorkin, echoed those sentiments. “Many in the group think this really makes us feel like second-class citizens,” said. “If we were a [racial or ethnic] minority, this wouldn’t be the policy of the school.”
The most reasonable of decisions are being examined in this Supreme court nomination process. But there are many that do feel that equal rights are important and the actions of dean Kagan were appropriate. I will leave you with a few words on the subject from Vice President Biden.
As a further update the White House Blog has made the following statement concerning nominee Kagans position on this issue.
A common claim from these critics is that the military was “banned” from the campus altogether during Kagan’s tenure as Dean – in fact, not only was the military allowed to continue to recruit in classrooms on campus and through the Harvard Law Students Veterans Association, a review of the recruitment figures has shown that recruitment kept completely on pace with previous years during Kagan’s time. Even more absurdly, some have claimed that Kagan’s upholding of Harvard’s nondiscrimination policy somehow violated the law – in fact, there has never been a law requiring that campuses allow military recruiters, only that the government was empowered to deny federal funds if military recruiters were not given access, so this claim is preposterous on its face. As the New York Times reported, “Her management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law.”