I’m not sure if Peter Beinhart is being intentionally intellectually dishonest in this column, or if he just doesn’t actually understand the issues involved in the decision of several law schools to ban military recruiters from campus. He takes Elena Kagan to task for her role, as Dean of Harvard Law School, in “banning” the legal branch of the U.S. military from coming and conducting on-campus interviews. In fact, Kagan didn’t actually ban the military at all — she accommodated them, just not through the Career Services office. And unlike other top law schools, which actually did block the JAG Corps from on-campus recruiting, Kagan allowed JAG recruiters to come to Harvard and interview students through the Harvard Law School Veterans Association, rather than through the career center.
For context, many law schools have on-campus interview periods wherein the school hosts a range of employers and has students sign up for interview slots. At my law school — which also banned military recruiters for a time, although my understanding is that we actually banned them — there was a week wherein private law firms were hosted, and a week in which public interest organizations were hosted. It’s how most (or at least many) students secured employment for the summer and after graduation. It entails significant effort and expense on behalf of the school to organize the entire process.
Law schools like Harvard and NYU also have strong anti-discrimination policies, which state that they will not host employers that discriminate on the basis of race, gender, religion, sexual orientation, etc. And those policies are reasonable — they emphasize that the school will not use its resources to host employers that discriminate against some students. If an employer refuses to hire women or African-Americans, the school sure as hell shouldn’t use its resources — resources that are provided in large part by students’ tuition dollars — to host that employer.
But Beinhart thinks this is about the morality of the military:
In a previous Beast column, I had criticized Kagan’s action as dean, arguing that barring recruiters from Harvard Law School because the military discriminates against gays was as counterproductive as banning ROTC from Harvard during Vietnam. That comparison, my correspondent insisted, “rests on a fundamental category mistake…what happened at Harvard Law School [during Kagan’s tenure] was not anything like the anti-military policies of the ‘70s that were directed at the military because they were the military.”
But the decision by Harvard and other elite schools to ban ROTC in the 1970s was not “directed at the military because they were the military.” It was directed at the military because it was fighting an unjust war in Vietnam. Then, the military was pursuing an immoral war in Southeast Asia; today, the military is pursuing an immoral policy against lesbians and gay men. The question was, and is, whether banning the military from campus constitutes the right response.
Except that banning the military isn’t a response to the military’s anti-gay policies; it’s an even-handed application of an existing policy that applies to all organizations and employers recruiting on campus. It doesn’t target the military’s policy; it recognizes that their hiring policies are at odds with the school’s anti-discrimination policy, and it treats them as the school would any employer.
Ah, but! The military is extra-special, I guess, which is why they should be allowed to use campus resources despite their discriminatory policies, when no one else is:
My correspondent went on to argue that I was wrong to call Harvard’s ban on recruitment “anti-military” since the school’s anti-discrimination policy applied to all employers. The military just happened to be one of those that discriminated. But seeing the military as just another employer strikes me as bizarre. The military, like Congress, the courts and the presidency, is one of our defining public institutions. To question its moral legitimacy is not like questioning the moral legitimacy of General Electric. And that’s exactly what banning the military from campus does. It suggests that Harvard thinks not just that the military’s anti-gay policy is immoral (which it emphatically is) but that the institution itself is immoral. It’s like refusing to sing the national anthem because you’re upset at the Bush administration’s torture policies or refusing to salute the flag because of the way Washington responded to Hurricane Katrina. It’s a statement of profound alienation from your country, and will be received by other Americans as such.
Well, no, it’s not like refusing to sing the national anthem, and it’s not questioning the moral legitimacy of the military itself; it’s questioning the moral legitimacy of discrimination generally, and acting accordingly. There also seems to be a fundamental misunderstanding about military recruitment at law schools — it’s not like ROTC, really, at all. Law school military recruiters are recruiting for the JAG Corps, which is the military’s legal unit; they aren’t recruiting soldiers for combat. It’s different than working in private practice, sure, but it’s not all that different from lawyering at a non-profit organization, or a firm, or as a law clerk, or in another branch of government. And the military wants the same benefit as every other employer — the benefit of on-campus recruiting, at the partial expense and effort of the law school — without adhering to very basic non-discrimination requirements. Law schools wouldn’t let the Department of Agriculture recruit on campus if they refused to hire female attorneys; I don’t see why they should guilted into allowing the military on campus because of some misplaced sense of patriotism. And I wonder if Beinart would feel the same way if the military had, say, racially-segregated units, or didn’t allow female attorneys or attorneys of color to serve in the JAG Corps. Still a moral imperative to allow them on campus?
Even all of that said? Kagan did let military recruiters on campus, and was far more deferential to them than many other deans of top law schools. Here’s what happened: Many law schools barred the military from recruiting on the law school — not the whole university — campus because of the discrimination issue. Those law schools had their federal funding cut, but that was a price they were willing to pay. Some law schools, like Harvard under Kagan’s leadership, provided alternate accommodations for JAG recruiters to meet with students — giving them the same practical benefit of on-campus recruiting. More progressive schools, like NYU, did not.
Then, Congress passed a bill (the Solomon Amendment) cutting off federal funding to the entire university if the law school barred on-campus military recruiting. That meant pulling hundreds of thousands of dollars every year from the university as a whole because of the law school’s anti-discrimination policies. Most (maybe all?) of the law schools caved, and allowed recruiters on campus. When I was in law school, the school made a concerted effort to allow recruiters, but still unite students and faculty in favor of LGBT rights — the school hung a large rainbow flag in the entryway, and provided rainbow ribbons for all students to wear. They also sent out an email in advance of the recruitment explaining the situation. Most students chose not to interview with JAG, or would sign up for interviews and then not go. Year after year, the JAG recruiters went home early because there simply weren’t enough students to interview. The school’s reaction served the dual purpose of supporting LGBT students and allies, while still technically complying with federal law.
After Solomon passed, professors from several law schools joined forces and filed a lawsuit opposing the law; Harvard didn’t join, although Kagan did. After an appeals court found Solomon to be unconstitutional, Kagan still let recruiters on campus, just not formally through the career services office — a move that many LGBT advocates found offensive. Kagan’s own papers opposing the law emphasized that she still allowed recruiters on campus, giving them the same access to students as they would otherwise have, without technically violating Harvard’s anti-discrimination policies. The issue became null when the Supreme Court held that Solomon was constitutional.
Point being: Kagan’s position on Solomon was far, far from radical (Dahlia Lithwick has more on this). Even if she had done what Beinart and conservatives accuse her of doing — banning military recruiting on the HLS campus — it wouldn’t have been that extreme of a move. But she didn’t even do that. She took a more middling, accommodating approach than most other top law schools. Demanding that she apologize for that stinks of either willful misrepresentation of the facts or simple political point-scoring.