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Kagan, the Harvard Ban on Military Recruiters, and Anti-Military Bias

By Ilya Somin

(Ilya Somin)

Conservative critics of Elena Kagan, such as William Kristol and Ed Whelan, have focused on her role in trying to prevent military recruiters from interviewing at the Harvard Law School campus because of the law banning openly gay individuals from serving in the military. The critics argue that Kagan?s stance was badly misguided and a possible indication of anti-military bias. I think this critique of Kagan is half-right. She did make the wrong call, but there is no proof that it was caused by anti-military bias.

I. Why Kagan was Wrong.

Like Kagan, I believe that the military?s exclusion of openly gay personnel is both unjust and foolishly prevents the armed forces from using potentially highly qualified personnel. I?m not completely convinced that it?s ?a moral injustice of the first order,? as she put it. But I certainly think it?s an injustice of the second or third order.

At the same time, barring military recruiters from campus was not the right response to this injustice, especially in wartime. As the critics point out, it was ultimately Congress and the President, not the military, which imposed the ?don?t ask, don?t tell? policy. Kagan and other law school leaders were in the strange position of boycotting those who obeyed morally dubious orders while giving a pass to those who issued them. Moreover, until they were invalidated by the Supreme Court in 2003, some 13 states still had laws on the books banning ?sodomy.? Even if these laws were rarely enforced, that seems a much more severe infringement on gay rights than DADT. Yet neither Harvard nor (to my knowledge) any other law school banned recruiters from those states? legislatures and other government agencies. 

Even more importantly, the military?s unjust policy in this one area has to be weighed against the many good things the armed forces do, including their vital role in protecting our lives and freedom against outside enemies. In this regard, there is much to be learned from the position that black leaders took during World War II. Even though the armed forces were then segregated by law and otherwise engaged in egregious discrimination against blacks, the NAACP and other civil rights organizations supported military recruiting because they recognized that the enemies the military was fighting were far worse than the racist injustices of the armed forces themselves. As Joe Louis put it at the time when asked why he was promoting recruitment of blacks into a segregated military, ?[t]here may be a whole lot wrong with America, but there?s nothing that Hitler can fix.? The analogy is particularly apt in light of the fact that the radical Islamist enemies we are currently fighting have antigay policies that make even the most bigoted American social conservatives seem enlightened by comparison. As co-blogger David Bernstein put it back in 2005:

[C]onsider[ing] . . . that the military is engaged in several shooting wars right now, one can also question how much weight one should give ?Don?t Ask Don?t Tell? in the broader scheme of things, even if one thinks it?s a terrible, invidious policy. A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military?s policies...? If any of the leading advocates of boycotting military recruiters have seriously grappled with the moral implications of doing so in the midst of major military conflict with truly awful enemies, I haven?t noticed it.

II. Why She (Probably) Wasn?t Motivated by Anti-Military Bias.

Despite my opposition to Kagan?s efforts to exclude military recruiters from Harvard Law School, I see no indication that they were the result of antimilitary bias. The strongest argument in favor of such bias is that she sought to exclude the military, but not recruiters from Congress and the executive branch, which had imposed DADT in the first place. However, there are alternative explanations for this double standard. 

First, the HLS policy and that at other law schools applied only to those employers that discriminate against gays in their own hiring, not to those that might have promoted antigay policies by other employers. The military falls in the former category, Congress and the executive branch, the latter. Expanding the policy to cover that second category would have been a major step that Kagan and other deans would understandably be reluctant to take.

Second, boycotting recruiters from the executive and legislative branches of the federal government (as well as numerous state and local governments with various antigay policies) would have seriously impaired the employment opportunities of law students at any law school that took that step. Taking this consideration into account would not be a case of unprincipled hypocrisy or ?selling out? on Kagan?s part, as some critics suggest. Rather, it?s a case of two principled commitments conflicting with each other. On the one hand, the objective of promoting equality for gays and lesbians, on the other a law school?s obligation to help its students find employment opportunities. It is not necessarily unprincipled for a law school administration to conclude that the former obligation doesn?t always take categorical precedence over the latter. 

To be completely clear, I don? think that either of these points justifies the position that Kagan adopted. To the contrary, I think her position was wrong for the reasons explained above. But they are plausible explanations of her actions not based on anti-military bias.

Finally, it?s worth noting Kagan?s 2007 speech at West Point, where she went out of her way to praise the military and emphasized that her stance on military recruitment was not an indictment of the armed forces as a whole:

I want to thank all of the cadets here this evening-not for attending this talk (I?m told it?s not optional!), but for all you will do to defend, protect, and strengthen this country. Each of you has made a decision-a profound commitment-· to join ?the long grey line? of service. I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger. I
know how much my security and freedom and indeed everything else I value depend on all of you....

I don?t accept many outside speaking invitations; this may be the only talk of this kind that I?ll give this year. I accepted this invitation primarily to thank all of you senior cadets....

I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds indeed,
facing each other in court ? on one issue. That issue is the military?s don?t-ask don?t? tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise....

But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue.

To be sure, Kagan could hardly take a generally negative stance on the military in a speech at West Point. But as she implied in the speech itself, if she were genuinely anti-military, she could simply have turned down the invitation (perhaps by pleading conflicting commitments, of which an HLS dean usually has many).

In sum, Kagan?s support of a ban on military recruiters is legitimately subject to severe criticism. Senators should certainly question her about it. But I don?t see any reason to believe that it reflects any general hostility towards the armed forces.

Full post as published by The Volokh Conspiracy on May 10, 2010 (boomark / email).