What a difference twenty years make. In 2003, Elena Kagan became dean of Harvard Law School. At the time, many law schools prohibited JAG officials from recruiting on campus, citing “don’t ask, don’t tell” policies. Dean Kagan did not ban JAG from recruiting, but said he supported the ban. She spelled out this position in an email to the community:
“I abhor the military’s discriminatory recruiting policies. The importance of the military to our society, and the extraordinary service its members provide to all of us, makes this discrimination even more abhorrent. The military’s policies disenfranchise many people. It is a grave mistake that men and women of courage and character are not given the opportunity to serve their country in the best way possible, it is a grave moral injustice, and it is a mistake that tears at the very fabric of our own society .
Still, Kagan allowed recruiters to use the career services office.
But there’s also the Solomon Amendment. Under this federal law, colleges can be denied funding if they deny military recruiters access to campus. An association of law schools called the Forum on Academic and Institutional Rights challenged the constitutionality of the Solomon Amendment.
In 2004, Kagan participated in an amicus brief in the Third Circuit arguing that the Solomon Amendment violated Harvard University’s free speech—in this case, excluding military recruiters as a protest against “Don’t Ask, Don’t Tell.” The way. Dean Kagan imposes ban on military draftees after 3rd Circuit Court of Justice rules. But the Pentagon later threatened to withhold funds, and Kagan relented. (SCOTUSBlog links to many primary sources.)
The case was then appealed to the Supreme Court, where Kagan joined another amicus brief. According to Chief Justice Roberts, the court ruled 8-0 against FAIR. (The case was argued in December 2005, before Justice Alito joined the bench.) The court held that the Solomon Amendment regulated conduct, not speech, and was constitutional. As I recall, the dean of George Mason University School of Law was the only dean to file a brief in support of the Solomon Amendment. (Mason was a very special place in 2006—just months before I enrolled.)
I suspect Dean Kagan would rather forget rumsfeld v. fair. And, perhaps fittingly, in Network selection, Judge Kagan downplayed the case. She mentioned this only briefly at the top of page 17 of the submission and in a curious footnote on page 18:
4 Of course, an entity may not engage in expressive activities when performing one function but not when performing another function. this is a lesson Fair. The court ruled this way because law school admissions services do not involve expression. See 547 US 47, 64 (2006). If the rule affected what happened in law school classes, the case would not be settled.
I pulled in the Friends of Harvard statement. Fairwhich has a very similar point:
Or, according to the administration’s reasoning, Congress could use the hook for federal funding to require private colleges to notify students at the beginning of each course of the recruiting season when and where recruiters can attend interviews. Because the conditions do not target “dangerous ideas,” the government does not believe they pose a constitutional problem. Clearly, however, such a condition would undermine the principle of academic freedom and the First Amendment values that that principle serves.
Dean Kagan will never forget the controversy. Glad she smuggled that perspective into majority opinion. It will be referenced in contexts both near and far. And, nothing has changed, Seth Waxman is here to represent Harvard as he was in SFFA.
Justice Alito Network selection Dissent points out how Judge Kagan covered up Fairalso plum garden.
Two precedents that most people try to downplay, if not forget, are telling. the first is mowing yard, which I have already discussed. . . .The decision is based on Fair Based on similar reasoning.
Yes, Judge Kagan would rather forget Fair.
Of course, Justice Alito may have some thoughts on this issue. Alito did not participate in 3rd Circuit panel opinion Fair. But he did serve in ROTC at Princeton University. He was affiliated with Princeton Concerned Alumni, a group formed to bring ROTC back to Princeton, although he later disowned the group.
