Republicans And Right-Wing Media Push Myth That Kagan ‘Banned’ Military Recruiters From Harvard Law School

By Alex Seitz-Wald

Moments after President Obama nominated Solicitor General Elena Kagan to the Supreme Court, the right wing mobilized against her, claiming that she “banned” military recruiters during her tenure as dean of Harvard Law School.

Yesterday, Sen. Jim Inhofe (R-OK) became the first senator to oppose Kagan, citing her “poor judgment” when she “banned the U.S. military from recruiting on campus.” Judiciary Committee Ranking Member Sen. Jeff Sessions (R-AL) said last night that Kagan “block[ed] these wonderful men and women from being on the campus,” while House Minority Leader John Boehner (R-OH) said in statement that her decision to “ban” recruiters was “troubling.”

The right-wing media has dutifully latched onto this talking point. Watch a compilation:

In reality, Kagan never booted, banned, or barred recruiters from Harvard Law School. As White House adviser Valerie Jarrett noted on MSNBC this morning, “One of the years she was dean, actually [military] enrollment went up on campus.” Here are the key facts:

1) Kagan briefly prevented the military from using the school’s Office of Career Services (OCS), but never barred recruiters from campus, allowing them to operate through the school’s Veterans Association during her entire tenure.

2) Harvard Law School has a long-standing policy designed to prohibit employers that discriminate on the basis of sexual orientation from recruiting through the OCS, but made an exception for the military, which Kagan observed.

3) Seeking to fully enforce Harvard’s policy, Kagan supported an effort to overturn the Solomon Amendment, which would have stripped Harvard of $400 million in federal grant money had she barred recruiters from using the OCS.

4) In 2004, a federal appeals court ruled against the Pentagon on the Solomon Amendment, and Kagan briefly prohibited the military from using the OCS.

5) In 2006, the Supreme Court overturned the appeals court, and Kagan reinstated the military’s right to use the OCS.

Even ultra-conservative Fox News legal analyst Judge Andrew Napolitano understood this, explaining that Kagan was “following the law as it then existed.”

As former Harvard Law School dean Robert Clark explained in today’s Wall Street Journal, “Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School. But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.” Despite expressing her objections to the military’s discrimination against gays, Kagan never “banned” military recruiters from the law school campus.