In a Senate floor statement a few days ago, Judiciary Committee chairman Pat Leahy purported to “set the record straight” on Elena Kagan’s actions against military recruiters as dean of Harvard law school. Among other things, Leahy claimed that it “is not true” that Kagan “acted in a way that was ‘not lawful,’ and that she ‘violated the law’”:

She did not break the law. She did not violate the law. She did her best to follow the law, even a law that led to discriminatory consequences with which she strongly disagreed. She engaged in legal action and participated in a legal challenge to the interpretation and application of the law by the Bush administration that reversed an earlier interpretation by the Air Force. Yet this legal action is what some have claimed amounted to illegal conduct. That is not fair.

Let’s put Leahy’s claim in the proper legal and factual context. Here’s my basic understanding (which I will readily correct if it is wrong in any particular):

1. The Solomon Amendment required that universities receiving federal funds not discriminate against military recruiters.

Clarification (6/19): A couple of readers have pointed out, correctly, that the Solomon Amendment itself is a restriction on the Department of Defense’s use of appropriated funds. My understanding, which Senator Leahy evidently shares (or else it would make no sense for him to assert that Kagan “did her best to follow the law”), is that other provisions of federal law, like the False Claims Act, interact with the Solomon Amendment to require that universities receiving federal funding not discriminate against military recruiters.

2. In November 2004, a divided panel of the Third Circuit ruled that the Solomon Amendment was unconstitutional. The panel’s ruling never became legally effective: The panel stayed its own ruling pending Supreme Court action on the government’s certiorari petition, and the Supreme Court in March 2006 (in Rumsfeld v. FAIR) unanimously reversed the panel’s ruling. (See general timeline here.)

3. In the immediate aftermath of the Third Circuit’s November 2004 ruling, Kagan barred military recruiters from Harvard law school’s jobs office (“OCS”). They were instead left only the clearly inferior option (see point 3 here) of working through the law school’s student veterans association. By her own account (written in September 2005), Kagan knew that the Third Circuit decision did not give her any legal basis for barring military recruiters from the jobs office. Rather, she had hoped that it would give her practical leverage against the Department of Defense:

[T]he Third Circuit’s ruling is stayed pending the Supreme Court’s decision…. Although the Supreme Court’s action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit’s decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. [emphasis added]

In September 2005, after the Department of Defense made clear that it would stand by its reading of the Solomon Amendment, Kagan finally reversed course and restored military recruiters’ access to the law school’s jobs office:

Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season.

4. Harvard was receiving federal funds during the eight or nine months that Kagan barred military recruiters from the jobs office. The Supreme Court’s unanimous ruling in Rumsfeld v. FAIR establishes that the Department of Defense’s interpretation of the Solomon Amendment was right and that Kagan put Harvard in violation of the Solomon Amendment when she barred military recruiters from the jobs office. In sum, with the simple understanding that Kagan was acting as an agent of Harvard, it’s entirely accurate to say that Kagan “acted in a way that was ‘not lawful,’ and that she ‘violated the law.’”

I can’t make sense of Leahy’s contrary claim. Leahy asserts that Kagan “did her best to follow the law.” How can that possibly be? Kagan freely chose to boot the military recruiters from the jobs office after the Third Circuit’s ruling. And she plainly did so because of her hostility (“a profound wrong—a moral injustice of the first order”) to Don’t Ask, Don’t Tell.

Perhaps Leahy means merely to maintain that Kagan acted on a good-faith misunderstanding of what the Solomon Amendment meant. But the Supreme Court’s unanimous rejection of Kagan’s reading and Kagan’s patent hostility to Don’t Ask, Don’t Tell call into serious question Kagan’s good faith. And, in any event, Kagan’s subjective state of mind wouldn’t change the fact that Leahy baselessly disputes—that she violated the law.

Elsewhere in his floor statement, Leahy seems to think it meaningful to point out that the Solomon Amendment “is not a criminal statute.” That would be a relevant observation if anyone argued that Kagan had committed a criminal violation. Leahy also points out that the Solomon Amendment requires that certain processes be followed before federal funding is denied as a penalty for violating the Solomon Amendment. But the fact that Kagan reversed course before the Department of Defense resorted to those processes in no way means that her conduct didn’t violate the Solomon Amendment.