Defenders of Elena Kagan’s words and actions against military recruiters have tried to give the impression that Kagan was obligated by the law school’s nondiscrimination policy to pursue the course she did. (For example, among its many confusions on the matter, Media Matters contends that the “anti-discrimination policy directed Kagan’s decision on military recruiters” (emphasis added).) That defense can’t explain her vehement rhetoric, nor can it explain her discretionary decision in November 2004 to bar military recruiters from the law school’s jobs office. As it turns out, that defense also can’t be reconciled with Kagan’s acceptance of other exceptions to the law school’s nondiscrimination policy.

Imagine, hypothetically, that an outside organization working through a Harvard law school student group sought student volunteers to provide their services but barred gay male students from taking part. Sounds like that would be a clearcut violation of the law school’s policy barring “discriminat[ion] against any person on the basis of … sexual orientation … in … access to … its programs and activities,” right?

Well, the hypothetical captures the on-campus blood drives that the American Red Cross has carried out under the auspices of the law school’s Republican Club since the time that Kagan was dean. Under the Red Cross’s policies, any “male who has had sexual contact with another male, even once, since 1977” should not give blood. An HLS student who has been involved in the blood drives assures me that the law school’s administration has provided all the necessary sign-offs and accommodations to enable the blood drives to take place.

My point is not to contend that an exception for Red Cross blood drives somehow logically compels an exception for military recruiters. (It obviously doesn’t.) My point is simply to illustrate that the nondiscrimination policy didn’t tie Kagan’s hands in the way that some of her defenders maintain.

More broadly, another HLS student has e-mailed me to observe that Kagan “selectively read the text [of the law school’s nondiscrimination policy] in such a manner as to include only those acts of discrimination that she disagrees with”:

There’s also the issue of minority scholarships, recruitment programs, etc. As someone who struggled to find a 1L summer job in this market, I can remember going through the listings for the many (usually paid) 1L summer diversity programs at top firms. That the law school, through OCS [the jobs office], would make those available to students is, in my view, aiding in a discrimination worse than don’t ask/don’t tell. (I can’t choose to remain silent on my race.) Add to this the minority recruitment fairs, the Lavender recruitment initiatives/fairs, etc. and I think it’s very clear, and quite telling, that the administration welcomes certain forms of discrimination on the basis of race and sexual orientation.