In his column in today’s Washington Post, E.J. Dionne Jr. maintains that Elena Kagan’s decision, as dean of Harvard law school in 2004, to bar military recruiters from access to the law school’s jobs office was “simultaneously careful and principled”—just “what makes for thoughtful judging.” There are two elementary problems with Dionne’s assessment:

1. Dionne states that Kagan “allow[ed] recruiters access through a student veterans group,” but he fails to note how inferior that access apparently was. As I have explained (in point 3 here), the student veterans group made clear that it had “neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events” and that the e-mail address that it could provide obviously “falls short of duplicating the excellent assistance provided” by the law school’s jobs office.

Kagan’s supporters routinely rely on the existence of this inferior alternative—as though Kagan could have shut down e-mail access—while falsely asserting or implying that the alternative was the practical equivalent of access through the jobs office.

2. Dionne fails to note that the Supreme Court unanimously determined (in Rumsfeld v. FAIR) that the sort of discrimination that Kagan engaged in against military recruiters violated the Solomon Amendment (which conditioned federal funding to a university on that university’s providing nondiscriminatory access to military recruiters). So much for her “careful and principled” approach.