By: David A. Patten
I'm Just saying
Kagan's opposition to treating military recruiters the same way corporate and legal recruiters were treated is emerging as one of the most controversial aspects of her background.
Even observers who customarily support President Obama's policies are criticizing that aspect of Kagan's career. Daily Beast senior political writer and author Peter Beinart, who generally lauded Obama's pick, said Kagan should apologize for treating military recruiters like second-class citizens.
"The question was, and is, whether banning the military from campus constitutes the right response," Beinart wrote. "I think it was stupid then and stupid now."
According to the conservative Young America's Foundation (YAF): "Kagan treated patriotic students like second-class citizens when she banned them from meeting with military recruiters in the career office."
A YAF news release Monday evening declared: "She forced students to meet with military representatives off campus or in a segregated part of the campus, essentially telling these young people to 'get to the back of the bus.'"
Harvard's ban on military recruiters preceded Kagan by several decades. The reason: The Armed Forces would not allow openly gay soldiers to serve.
In 2002, after 9/11 and up against mounting pressure from the Bush administration, the law school relented and agreed to allow the on-campus visits.
Kagan, however, rose to become dean of the school one year later.
Kagan openly expressed her passionate opposition to allowing the visits, even calling the military's "don't ask, don't tell" policy "a moral injustice of the first order."
In November 2004, after a favorable court ruling, Kagan banned military recruiters from the law school campus once again. She did allow recruiters limited access through the Harvard Law Students Veterans Association.
Kagan and 40 other Harvard professors then signed a friend of the court brief, in an effort to persuade the Supreme Court to rule in favor of the ban.
To the contrary, the Supreme Court ruled 8 to 0 that Kagan and her colleagues were wrong.
“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” Chief Justice John G. Roberts Jr. wrote in his Rumsfeld v. FAIR opinion.
"The Supreme Court's unanimous decision rejected Kagan's radical ideology," the YAF statement declared Monday, "saying that students have every right to meet with the military on campus and that the federal government has every right to deny US taxpayer funds to schools that did not comply."
Ironically, one of the leaders who took issue with Kagan's controversial stance was then Sen. Barack Obama. Speaking at Columbia University in 2008, Obama said: "The notion that young people … anywhere, in any university, aren't offered the choice, the option of participating in military service, I think is a mistake."
Young America's Foundation Vice President Kate Obenshain said Monday: "Kagan has repeatedly trampled on the rights of patriotic students who want to serve their country. She did so even at a time when our nation is at war."
The YAF is urging senators to oppose the Kagan nomination, warning "The battle to limit the rights of certain students on campus, particularly those willing to sacrifice their lives in the service of their country, will begin anew should Kagan win a powerful life-long seat on the Supreme Court.
The YAF has defended the rights of ROTC and other students to serve their country for over 40 years.
"In those 40 years, we have never seen as dire a threat to students' rights, and the constitutional rights of all citizens, as Elena Kagan presents," the organization states.