Patterico's Pontifications


Separate But Equal at Harvard Law

Filed under: Civil Liberties,Judiciary — DRJ @ 4:09 pm

[Guest post by DRJ]

The Obama Administration claims a new email shows Supreme Court nominee Elena Kagan did not thwart military recruiting at Harvard Law School because military recruiters were allowed to interview through another organization. They argue that even though Kagan banned military recruiters from using the HLS Office of Career Services — the office designed and funded to help potential employers schedule interviews with students — Kagan should be forgiven for denying military recruiters those services because they had access through another venue.

If that shows how fair Kagan is, I’m interested in her position on America’s ‘separate but equal’ laws.


10 Responses to “Separate But Equal at Harvard Law”

  1. “That’s different.” Great hook for the article, DRJ.

    htom (412a17)

  2. The more I read about this, the more I wish there was a simple cure for homosexuality, if only to Shut. The. GODDAMNED. Gays. UP!!! In the old days, it was seen as, and treated as, mental illness…and I’m thinking that the old days had some pretty good ideas.

    Okay, so the gays are mad because they can’t serve and be (openly) gay. Boo bloody hoo. Neither can color-blind people serve, nor hemophiliacs, nor lots of other kinds of people. Get. OVER. It!

    Technomad (e2c0f2)

  3. Correct me if I am wrong, but didn’t Congress create the DADT rule? And isn’t the military just following orders? If that is the case, then Kagan and all of the other Lefty Dandy’s in academe, seem to be logically challenged. Shouldn’t they be protesting to their congress-persons? (I am trying to be ironic here so bare with me). If that is the case, then Kagan, just for her inability to reason, should not be allowed on the SC.

    BT (74cbec)

  4. Plus, there is a memo from her Clinton WH days which suggests that she equated the NRA with the KKK!

    AD - RtR/OS! (4ae013)

  5. Did the military ask to interview through the HLS Office of Career Services? If they did and were rejected and offered this alternative instead, it would be nice to produce that correspondence.

    daleyrocks (1d0d98)

  6. daleyrocks,

    It’s not exhaustive but here’s a brief summary of Kagan’s role in the military recruiting ban and litigation that I think is fairly accurate:

    Kagan’s involvement in the Harvard military controversy dates to 2003, when she became dean. She had inherited a new Harvard policy that allowed military recruiters to use official law school channels to access students. Harvard had been forced in 2002 to lift its longstanding ban when the Department of Defense threatened to strip about $328 million in federal funding from the entire university — about 15 percent of its annual budget — if the law school did not relent.

    Clark, dean at the time, said the greater good of the university would have to prevail over the law school’s stance against discrimination. When Kagan took over, Clark said in an interview yesterday, she “did the same thing I did for several years — send an e-mail to students every year explaining the military exception to our nondiscrimination policy.’’

    Kagan cited her “deep distress’’ over the issue in a 2003 message to students, calling the ban on openly gay service members “a profound wrong — a moral injustice of the first order.’’

    As other law schools around the nation, led by a Boston College professor, mounted a lawsuit charging the Department of Defense with violating the First Amendment by forcing law schools to allow military recruiters on campus, Kagan did not join in.

    In 2004, Kagan and 53 other Harvard Law professors signed a friend-of-the-court brief supporting the lawsuit, but some students and faculty were disappointed that she had chosen not to lead the legal battle. Later that year, a federal appeals court ruled that the Solomon Amendment, a 1996 law that denies federal money from schools that do not permit military recruiting, infringed improperly on the law school’s constitutional freedoms.

    The next day, Kagan announced that the law school would return to its pre-2002 policy of preventing the military from using the office of career services to recruit.

    “The policy was not to stop recruiting,’’ Clark said. “It was to express a judgment on the military’s [antigay] policy.’’

    The number of Harvard law students recruited into the military each year remained steady during the flip-flopping changes in policy, Clark said. From 2003 through 2008, about three students a year joined the military.

    In the fall of 2005, under the threat of massive federal sanctions once again after the school denied recruiters access that spring to the office of career services, Kagan decided to let military recruiters back on campus to conduct official interviews. In 2006, the Supreme Court reversed the appeals court decision and upheld the Solomon Amendment. To this day, military recruiters have access to Harvard Law School students.

    DRJ (d43dcd)

  7. DRJ – Thanks. I thought there was a public record of disparate treatment.

    daleyrocks (1d0d98)

  8. She is a loyal lefty. What did you expect ?

    Mike K (82f374)

  9. I remember back in the OLD days (1971) abnormal pysch class, yup homosexuality was a curable disease. In fact the research at the time showed sexual orientation was pretty darn easy to change. Of course back then they could actually research this stuff. They taught gay men social dating skills and cured them. Men were easier to talk to than girls, teach them how to talk to girls and they were fixed. Strange.

    Dan (431719)

  10. I’m about as conservative/libertarian as one can get but this issue is starting to piss me off on both sides of the argument. I could give a rat’s ass what sexual preference a soldier has if he or she wants to defend and fight for this wonderful country. I’m a cop and there’s gay police officers. I couldn’t care less and would defend them with my own life as they would for me.

    This is what happens when government decides to intercede and/or interfere with our private lives. Two people want to get married? Let them get married. We have laws against incest, beastiality, and other perversions so that’s not even on the table. We, the conservatives, are falling into the trap set by liberals hook line and sinker. Some Gays are just plain stupid in how they’re handling this situation. You don’t storm churches while people pray. You don’t flaunt the very things that are unnerving people that wouldn’t really care about it to the point you piss them off and your sexuality is no one else’s business, so keep it that way. Most normal people don’t want to watch public displays of ANYBODY acting lewd in public places with kids around.

    The Church won’t change overnight and never will. When I was a kid we couldn’t eat meat on Fridays and women had to wear some type of cover over their heads in church. It changed. If we could only move on to bigger and better things, allow Americans to live their lives the way THEY want to so long as they’re not hurting anyone else we’d be better off. I want gay people to come out of the closet, not the one you think. I want them to be able to openly display that they’re conservative and have common sense. Right now there’s only one party that is representing them for all intents and purposes. That party is actually using them and probably couldn’t care less in reality. As a heterosexual male my attraction for women is inate, almost primitive and I’m wired that way. I’m taking a guess that gay people have that same feeling for people of their own sex, were born that way, and can’t help it. Common sense tells me that if they had a choice they wouldn’t want to be ostracized, isolated, and belittled every day of their lives if they really had a choice. Just a wild ass guess. Although I’ve heard arguments from all sides it sure feels like bigotry to me regardless of the spin we try to put on it and I’m betting I’m not the only one feeling that. Can we please just move on, let these people marry and love whoever they wish, serve the nation in whatever capacity they can, and just be Americans once and for all?

    Dave B (58a07e)

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