The Spectacle Blog

Fudging Facts to Defend Kagan

By on 5.11.10 | 1:25PM

Robert C. Clark, who was a colleague of Elena Kagan's at Harvard Law School, takes to the Wall Street Journal op-ed page today to defend her treatment of military recruiters. His defense, though, relies on the omission of key facts:

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools' First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to "don't ask, don't tell."

A reader could be forgiven for inferring from this passage that after the Third Circuit struck down the Solomon Amendment, it no longer carried the force of law, and that it became good law again a semester later when the Supreme Court reversed the Third Circuit. But as I laid out in today's column, that isn't how it happened. The Third Circuit stayed its decision pending appeal, leaving the Solomon Amendment in force; Kagan reverted the law school to its pre-2002 policy anyway. She relented in 2005 only because of the DoD's threat; the Supreme Court ruling that upheld Solomon (unanimously, by the way) did not come until 2006.

The fact that Professor Clark's defense of Kagan's 2004 decision requires him to elide such important details is a rather stark illustration of just how indefensible that decision actually was.

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