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Elena Kagan, the Solomon Amendment, and "Don't Ask, Don't Tell"

by Professor Will Huhn on May 13, 2010

in Constitutional Law,Elena Kagan,Freedom of Speech,SCOTUS,Wilson Huhn

     This posting discusses Supreme Court nominee Elena Kagan's statements and actions with respect to employment interviews for the military at Harvard Law School.

     As a condition of accreditation the ABA requires law schools to adopt and conform to a policy nondiscrimination; as a consequence, law schools are supposed to arrange student interviews only with employers who do not discriminate.  In accordance with this policy for many years a number of law schools denied military recruiters access to their students on the ground that the military discriminates on the basis of sexual orientation.  In the 1990s Congress adopted the Solomon Amendment (10 U.S.C. 983) which prohibits the award of federal funds to educational institutions that deny access to military recruiters.  In 2005 the Third Circuit Court of Appeals ruled that the Solomon Amendment was unconstitutional because it violates the First Amendment rights of law schools and universities to freedom of speech.  The following year the Supreme Court reversed that decision in Rumsfeld v. Forum for Academic and Institutional Rights (2006).   The Supreme Court unanimously ruled that the Solomon Amendment is constutional because it regulates conduct, not speech.  The Court found that law schools have a constitutional right to oppose the military's discriminatory policies, but they are required to permit military recruiting to proceed.

     Harvard Law School adopted its nondiscrimination policy in 1979, and as a result for many years the law school refused to allow its Office of Career Services to set up interviews for military recruiters.  Instead, interviews were set up through the Harvard Law School Veterans Association.  In 2002 when the federal government threatened to cut off funding to the entire University, Dean Robert Clark changed that policy and permitted military recruiters to conduct interviews through the Office of Career Services.  Dean Kagan continued that policy in 2003 and 2004, but in 2005 she reinstituted the ban on military recruiters after the Third Circuit issued its ruling that the Solomon Amendment was unconstitional.  A few months later she reinstated the ban when the federal government again threatened to cut off funding.  In 2005 Kagan wrote a letter to the Harvard law school community explaining her decision to allow military recruiters official access to campus; this letter was recently posted here by Andrew Sullivan of The Atlantic.  In her letter Kagan states:

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.

     In September, 2005, Kagan and 39 other professors at Harvard Law School submitted an amicus brief to the Supreme Court in Rumsfeld v. Forum in which they argued that the Solomon Amendment itself should be construed to permit law schools to enforce blanket nondiscrimination policies against employers – that the Solomon Amendment should not be interpreted to mean that military recruiters were exempt from neutral nondiscrimination policies applicable to all other employers.  The professors commenced their brief by stating:

We are deeply committed to a fundamental moral principle: âA society that discriminates based on sexual orientation – or that tolerates discrimination by its members – is not a just society.â App. 149 (Memorandum from then-Dean Robert C. Clark to the Harvard Law School Community). Our goal is to vindicate Harvard Law School's right to apply its evenhanded antidiscrimination policy to all recruiters – including those from the United States military – in harmony with the numerous federal, state, and local laws that outlaw various forms of discrimination by private actors.

     The Supreme Court settled the question of the interpretation and constitutionality of the Solomon Amendment in 2006 when it ruled against the law schools in Rumsfeld v. Forum. 

     On May 11 Denise Lavoie of the AP posted this article entitled Kagan's Role Against Military Recruitment Studied.  Lavoie cites the reaction of both Kagan's supporters and opponents with respect to this issue.

This is the fourth in a series of postings on Elena Kagan.  The others are "Elena Kagan on the Confirmation Process," "Elena Kagan on Presidential Administration," and "Elena Kagan on Pornography and Hate Speech."

{ 3 comments }

Robert M Kraus Sr May 13, 2010 at 9:46 am

Professor Huhn, I have logged on to the Akron Law Cafe site a couple of times . . . have read the stuff that is there . . . and generally found it interesting . . . . but i don't know how to participate . . . so I just randomly selected a comments button and got this form . . . so . . . here is what I pose . . . . . is the following statement true? . . . . when a school teacher observes in school a student who has a body injury the teacher is obligated to report the condition to a government official or agency . . . . if this is true, how did the obligation arise? . . . .did the teacher agree to do that when hired?

I would like to discuss this; is the Akron Law Cafe a proper and suitable place for the discussion? Please advise me.

rmk sr

Dan S. May 13, 2010 at 9:52 am

While I applaud her position on the core issue, I'm disappointed that she seemed to cave in to the threat of monetary loss if she stood her ground at Harvard. Minus one point for her on the confirmation scorecard.

Professor Will Huhn May 16, 2010 at 7:42 am

Robert,
There are mandatory reporting laws requiring teachers and other professionals to report suspected cases of child abuse to the proper authorities. I am not an expert on those laws. Prevent Child Abuse Ohio has a website with information about this subject at http://www.pcao.org/whatis/suspect.cfm.
Dan,
At the time I thought that the Solomon Amendment was constitutional, and despite my contempt for Don't Ask, Don't Tell I thought that our law school should obey the law and allow military recruiters on campus. To me, it appeared that the Solomon Amendment was regulating conduct, not speech, just as the Supreme Court later unanimously held. And the Solomon Amendment is not a criminal law; it simply withholds funding from any university whose law school refuses to allow military recruiters. Under federal law a law school is perfectly free to bar military recruiters from campus even today. No law school does this, of course. While law schools receive very little federal funding, Harvard University as a whole would have lost 15% of its revenues if it had continued to bar military recruiters, and the University would quite properly have removed Kagan as Dean of the law school if she had not changed course.
The Solomon Amendment is perfectly constitutional. It is Don't Ask, Don't Tell that is, in my opinion, unconstitutional. Elena Kagan has made her position clear on that subject. I do not fault her for obeying the Solomon Amendment.

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