Bench Memos

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Obama’s SG Pick Elena Kagan—Part 3


My Part 2 post on Elena Kagan’s opposition to the Solomon Amendment led a reader to call to my attention a remarkable e-mail that Kagan sent to the entire HLS community in October 2003.  Kagan became dean in 2003; her references to “the Dean” are to her predecessor, Robert C. Clark.  Excerpts (emphasis added):

The Law School’s anti-discrimination policy, adopted in 1979, provides that any employer who recruits at the School and uses the services of OCS must sign a statement indicating that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. Last year, the Dean of Law School, in consultation with other officers of the University, reluctantly lifted this ban for the military. The Dean took this action because of a new ruling by the Department of Defense stating that unless the Law School took this action, the entire University would lose federal funding under a statute known as the Solomon Amendment.… The Dean determined, as did all his counterparts at other law schools, that he should make an exception to the School’s anti-discrimination policy in the face of this threat to the University’s funding. I left this exception in force this year, once again because of the enormous adverse impact a prohibition of military recruitment would have on the research and educational missions of other parts of the University.
This action causes me deep distress, as I know it does a great many others. I abhor the military’s discriminatory recruitment policy. The importance of the military to our society — and the extraordinary service that members of the military provide to all the rest of us — makes this discrimination more, not less, repugnant. The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country.

The then-current (and still-current) version of the policy that Kagan labeled “a profound wrong” and “a moral injustice of the first order” was approved in 1993 by a Democratic-controlled Congress and signed into law by President Clinton.

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