Evan Schwartz: Why GW can’t do what Kagan did

Solicitor General Elena Kagan will likely be confirmed to the Supreme Court in the next few weeks, making her the fourth female Supreme Court Justice in history. But Kagan is under scrutiny as the confirmation process progresses, and she is facing backlash thanks to a decision she made while she was Dean of Harvard Law School. Her decision barred military recruiters from the Law School’s campus.

While Kagan was the dean, she learned after 25 years of being banned from the Law School’s main recruitment office, the military could return to campus. In 2003, Kagan wrote to the Law School community that a federal law known as the Solomon Amendment said the government could pull funding for any school that prohibited military recruiting. Realizing the need for funding, she was forced to lift the ban.

Then, a federal appeals court struck down the Solomon Amendment, and Kagan re-imposed the military ban in 2004, the decision she is currently facing criticism for. At the time, Kagan said the decision to bar recruiters was because “don’t ask don’t tell” conflicted with Harvard’s own hiring policy, which prevents discrimination in hiring based on sexual orientation.

But the Supreme Court then overturned the federal appeals court’s decision over the Solomon Amendment, and so Kagan was forced to lift the ban yet again. GW has a nearly identical anti-discrimination policy, and largely because of funding, it too allows recruiters and Reserve Officers’ Training Corps to have a place on campus.

A university making a political statement may seem noble or high-minded, but such action is inappropriate no matter how divisive or discriminatory or downright ridiculous a particular policy may seem. DADT will change, but the first step must come from the government itself.

GW is a school that has experience with the policy. The University faced controversy last year when then freshman Todd Belok, enrolled in the Naval ROTC, kissed his boyfriend at a party and was spotted by two fellow NROTC members. Belok was forced to withdraw from the program, despite a GW policy that protects students in school-sponsored clubs from discrimination based on sexual orientation.

It certainly seems GW would have enough ammunition to ban military recruiting on campus, echoing the move made by Kagan at Harvard in 2004. But for a University in the heart of the nation’s capital, miles from the Pentagon and Arlington Cemetery, the backlash would be immense. Not only would it mean GW could lose a great deal of federal funding under the Solomon Amendment, but it would also affect the military’s numbers. In a time when our nation is engaged in two wars, the last thing college campuses should be doing is preventing the military from reaching out to new recruits.

Kagan’s decision will probably not cost her a shot at the Supreme Court, nor should it. She kept in line with federal laws, lifting the ban when the Supreme Court found the Solomon Amendment constitutional. If DADT ever comes before the Bench, Kagan will likely make a decision based on precedence and constitutionality, rather than on her own opinion. She will be able to affect change on the Court, as long as the first real change regarding the policy comes from Congress or the President.

It is lamentable that the federal policy on homosexuals in the military is preventing untold soldiers from serving, and has led to the discharge of thousands of able-bodied men and women from the armed forces. Over 13,000 individuals were discharged since DADT was passed in 1993, according to Servicemembers Legal Defense Network, a military watchdog group.

The ramifications of DADT are clear, both in the Middle East and at our own University. But an outright ban of the recruiters along the lines of what Kagan did and others have called for could potentially harm our military and our school.

The writer, a junior majoring in journalism and mass communication, is a Hatchet columnist.

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