Elena Kagan was not my choice for the Supreme Court. I preferred others on the short list. Like everyone else, however, I am not surprised by Obama's choice.
We'll be hearing much about the "Solomon amendment" in the coming weeks, so I thought I'd explain the back story for full context. Kagan took a mainstream pro-gay position on this issue, by no means one on some radical fringe.
The Association of American Law Schools (AALS) is the "trade group" for law schools and law professors and grants "membership" to schools that meet its accreditation criteria. In 1990, the group made non-discrimination on the basis of sexual orientation a criterion for membership. Member schools were prohibited from allowing employers to recruit on campus unless those employers agreed not to discriminate in hiring on the basis of sexual orientation. At the time, only Wisconsin, Massachusetts, and the District of Columbia prohibited discrimination in employment on the basis of sexual orientation, so AALS was way ahead of the curve in that respect.
Law schools (at least those willingly complying with this mandate -- reaccreditation is a seven-year thing, so most schools had plenty of time to fall in step) began excluding the military from on-campus recruitment. (Here's a pretty good history of the early days of the policy.) This was before Don't Ask Don't Tell, when those wishing to join the military had to state their sexual orientation on application forms and homosexuality was automatically a ground for exclusion or expulsion.
In response, Congress in 1995 passed the "Solomon Amendment," and strengthened it the following year. The amendment said that schools that declined to provide access to military recruiters were barred from federal funding. (This affected schools banning ROTC out of a commitment to anti-militarism as well). Law schools that received little federal funding held firm to the nondiscrimination policy, but eventually federal regulations made clear that federal funding to an entire university would be withheld from schools that denied access to the military.
It is hard to overestimate the amount of time law schools and the AALS spent on dealing with the issues posed by the Solomon Amendment. Executive Committee and staff of the AALS, and law school administrators, almost entirely heterosexual, were strongly committed to the anti-discrimination policy. University administrators, however, were not going to jeopardize federal funding on a matter of principle. (One bright spot was an amendment in 2000 clarifying that federal financial aid to students could not be withheld for violating Solomon; even law school administrators and the strongest supporters of gay rights could not bear to see all student financial aid disappear from their campuses).
The AALS ultimately amended its bylaws in response to the Solomon Amendment and regulations implementing it, creating the catch word of "amelioration." Schools that allowed the military to recruit on campus were given the "duty to ameliorate" the discrimination of the military by, for example, expressing public disapproval of the discrimination and conducting activities and programs in support of sexual minority students.
The AALS also supported a challenge to the constitutionality of the Solomon Amendment, mounted by a group called the Forum for Academic and Institutional Rights (FAIR). In that case, FAIR v. Rumsfeld, the Third Circuit Court of Appeals ruled the Solomon Amendment unconstitutional, and then the US Supreme Court agreed to hear the case. After the Third Circuit ruling, Elena Kagan, then Dean of Harvard Law School, reinstated the school's policy of denying the military access to the school's career services office. (The military still came to the school but without the imprimatur granted other employers; this was not as strong a rejection of the military as some law schools chose).
Harvard University filed a friend of the court brief in the Supreme Court opposing the Solomon Amendment. Elena Kagan, as a professor at Harvard Law School, signed a brief filed on behalf of numerous members of that school's faculty, also opposing the law. (The brief she signed did not argue that the law was unconstitutional but that it should only apply to schools that completely ban the military, not those who hold the military to a nondiscrimination requirement applicable to all other employers).
According to SCOTUSblog, this is specifically what Kagan said about allowing the military to recruit at the law school:
"I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society - and the great service that members of the military provide to all the rest of us - heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country."
The Supreme Court upheld the Solomon Amendment 8-0. FAIR argued that the law violated academic freedom, denied freedom of speech to the law schools, and in fact compelled them to speak a message of support for the military that they did not believe. In rejecting this view, the Supreme Court ruled that the law did not prevent law schools from speaking, that they could speak all they wanted in opposition to Don't Ask Don't Tell or in opposition to being required to let the military recruit. Since the typical First Amendment approach to offensive speech is to meet it with more speech rather than repress it, the Supreme Court's ruling was both expected and not entirely unwelcome to many gay rights supporters. But it did close the door on banning (or treating differently)military recruiters coming to recruit at law schools, and it made "amelioration" the only accreditation standard the AALS could impose on member schools.
Again according to SCOTUSblog, Kagan said after the Supreme Court decision:
"I hope that many members of the Harvard Law School community will accept the Court's invitation to express their views clearly and forcefully regarding the military's discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong -- both unwise and unjust -- and I look forward to the day when all our students, regardless of sexual orientation, will be able to serve and defend this country in the armed services."
The AALS membership policy and the Solomon Amendment required law schools around the country to grapple with gay rights. The nondiscrimination policy was enacted by the AALS just a few years after I started full-time law school teaching. There weren't many out law school faculty; the nondiscrimination policy passed because so many straight allies supported it. After the Solomon Amendment, those same allies had to deal with their commitment to equality in the face of federal law deliberately seeking to punish schools for that commitment. Even as the number of out law faculty increased, it was still straight allies whose time was most occupied with the challenges posed by the Amendment.
Neither DADT nor Solomon has ever been the gay rights issue most important to me, and I am proud that I have so many colleagues here at American University Washington College of Law committed to gay rights that I have never needed to play a leading role in our own "amelioration" efforts. Every year, each day a branch of the Armed Forces comes to recruit here, faculty staff a table in the lobby with posters, buttons, literature, etc, decrying DADT and expressing the view of the school that we should not be required to allow the military on campus as long as they discriminate.
Elena Kagan appears to be one of those straight allies who believed that her school should not be required to condone discrimination in the military by allowing recruiters on campus who would not hire one segment of the law student population no matter how qualified they were to serve. She believed in the AALS membership requirement and wanted to uphold it. This is, and has been since the nondiscrimination policy was adopted 20 years ago, a mainstream position, not one on the radical fringe. Media Matters is staying on top of the right wing efforts to distort Kagan's record on this issue.
As I said at the top, Elena Kagan was not my first choice. (Although I confess loving that Kagan attended Hunter College High School, the then-all girls public school all New York parents wanted their smart daughters to attend; I attended Hunter College Elementary School in the 1950's). I regret that Obama lacked the courage to select a brilliant and unapologetic liberal giant, like Kathleen Sullivan or Pam Karlan, both openly lesbian.
But the sturm und drang about her view on DADT and military recruitment at law schools won't amount to much. In fact, if it's all the right can come up with I predict it will fall even flatter than the "wise Latina" flap about now-Justice Sonia Sotomayor. And we'll just have to keep waiting for the Supreme Court's first openly gay justice.