White House: Kagan Broke No Law Restricting Military Recruiters at Harvard

By Fred Lucas | May 18, 2010 | 9:18 AM EDT

Supreme Court nominee Elena Kagan, President Obama's choice to replace retiring Justice John Paul Stevens, makes the rounds with Senate leaders and Judiciary Committee members on Capitol Hill on May 12, 2010. (AP Photo/J. Scott Applewhite)

Washington (CNSNews.com) – The White House will not explore whether Supreme Court nominee Elena Kagan violated the law when she did not allow military recruiters at Harvard Law School.
“I don’t think anybody in the White House Counsel’s office had to research that,” White House Press Secretary Robert Gibbs said on Monday. “I don’t think anybody has ever brought anything to say she has ever been in violation of the law.”
A conservative advocacy group, however, says Kagan’s refusal to comply with federal law by cooperating with military recruiters at Harvard is reason enough for the Senate to reject her nomination as Supreme Court justice.
As dean of Harvard Law School, Kagan prohibited military recruiting on the campus because she disagreed with the “don’t ask, don’t tell” policy that prohibits homosexuals from openly serving in the military. Kagan argued that such a rule violated Harvard’s anti-discrimination policy.
As CNSNews.com reported last week, former Judge Advocate General Kyndra Rotunda, a Guantanamo Bay prosecutor and author of the book “Honor Bound: Inside the Guantanamo Trials,” says that Kagan did break the law.
And Sen. Jeff Sessions (R-Ala.) also said Kagan might have violated the law.
“She would not let them come to the area that does the recruiting on the campus,” said Sessions, the ranking member of the Senate Judiciary Committee, in an appearance on ABC’s “This Week” on Sunday.
“They had to meet with some student veterans, and this is not acceptable. It was a big error. That went on for a number of years. It was a national issue. People still remember the debate about it. She reversed the policy. When she became dean, they were allowing the military to come back on campus and had been for a couple of years.”
Kagan argued at the time that she was following the lead of the Third Circuit Court of Appeals, which ruled in 2004 that the federal government could not withhold federal funds from universities that ban military recruiters from campus because of the military prohibition against homosexuality.
The law, known as the Solomon Amendment, said that any university receiving federal money must allow campus access by ROTC or military recruiters “in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer.”
But the U.S. Supreme Court blocked the Third Circuit Court’s ruling, thus allowing the Solomon Amendment to be enforced until the Supreme Court finally reversed the Third Circuit’s decision.
Rotunda, now a professor at Chapman University Law School in Southern California, said Kagan did more than disagree with the military over its policy regarding homosexuals -- she refused to follow the law, which required her to make room for the military recruiters.
“(I)t wasn’t just a policy – it was a federal law,” Rotunda said. “And when she disagreed with federal law, she just simply decided not to follow it. And the Supreme Court unanimously found that the law was constitutional, and there was no reason to keep recruiters off of law school grounds.”
Gibbs on Monday cited Brig. Gen. Patrick Finnegan, dean of the academic board at West Point, who said it was “ludicrous” to suggest Kagan is anti-military.
Gibbs also referenced Sen. Scott Brown (R-Mass.), who met with Kagan last week and, according to The Hill newspaper, was satisfied with the answer she gave on the matter.
“She answered it, I felt, very honestly, and it was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole,” Brown was quoted as saying. “I do not feel that her judicial philosophy will be hurting men and women who are serving.”
Gibbs stressed that U.S. military recruiters still had access to Harvard law students.
“They were not afforded access to the office of career services,” Gibbs said. “They had access to students through the veterans’ organizations.” Gibbs noted that military recruitment “for the semester that is being looked at actually increased from the prior semester.”
‘Unfit for Supreme Court’
The conservative Family Research Council say says Kagan’s actions at Harvard are reason enough for the Senate to reject her nomination.
Family Research Council President Tony Perkins said Kagan may not oppose the military simply because it is the military. “However, she clearly does oppose the military because they have not yet bowed to the demands of the militant homosexual movement,” Perkins said on Monday.
"It's not that Elena Kagan does not want the military to defend our nation against terrorism; it's just that she wants to use the military to advance the left's radical social policy more. At least we know her priorities,” Perkins said.
The FRC president said Kagan is “part of a movement that is willing to sacrifice our freedoms for the sake of a narrow ideological agenda. That makes her clearly unfit for the Supreme Court and we will urge the Senate to reject her nomination."