STEVE INSKEEP, host:
When Supreme Court nominee Elena Kagan sits down for her confirmation hearing, the subject she is sure to hear about is whether she is - in the words of her critics - anti-military. This charge stems from her tenure as dean of Harvard Law School. The issue is how military recruiters were treated on the law school campus.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: For Kagan's critics, her treatment of the military on the Harvard campus is a nasty scar. Here's the Senate Judiciary Committee's ranking Republican Jeff Sessions, speaking on the Senate floor.
Senator JEFF SESSIONS (Republican, Alabama; Ranking Republican, Judiciary Committee): Ms. Kagan kicked the military off Harvard's campus and out of its campus recruitment office. She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they were risking their lives for our country. It was an unjustifiable decision.
TOTENBERG: The facts, however, are not nearly so clear-cut. Beginning in 1979, nearly a quarter century before Kagan became dean, the law school adopted an anti-discrimination policy that required all employers recruiting on campus to sign a pledge promising not to discriminate based on race, gender, ethnicity or sexual orientation.
Mr. MARK WEBER (Assistant Dean, Career Services, Harvard Law School): Because the military could not sign such a statement, they were not permitted to utilize the Office of Career Services.
TOTENBERG: Mark Weber is assistant dean for career services at the law school. He notes that despite this rule...
Mr. WEBER: The military was never barred from the campus.
TOTENBERG: Military recruiters continued to recruit on campus, setting up interviews through Student Veterans Association instead of the Career Services Office. In the 1990s, even after Congress passed a measure called the Solomon Amendment, requiring equal access for military recruiters, the Department of Defense deemed the Harvard system to be legal and sufficient.
But in 2001, after 9/11, the Bush administration reached a different conclusion, telling Harvard it would have to let recruiters operate through the Career Services Office, or else the entire university would lose all of its federal funding to the tune of 16 percent of its budget.
Robert Clark, then dean of the law school, surrendered, granting the military access not just to the campus as before, but to the Office of Career Services. When Elena Kagan became dean a year later, she continued the same policy, but she spoke out clearly against the military's don't ask, don't tell policy. In an email to students, she called it, quote, "a profound wrong, a moral injustice of the first order."
And she did more. Acting in her private role as a professor, she filed a friend of the court brief challenging the Solomon Amendment in court. When a federal appeals court struck down the provision nearly a year and a half after she became dean, she reinstated Harvard's anti-discrimination policy, barring military recruiters from using the school's placement office.
But while her public position as dean was to revert to the old policy, privately, Kagan reached out to the Student Veterans Association, asking the members - many of them Iraq War veterans - to once again act as a proxy for the placement office.
Recollections of her meeting with the group vary, and of the dozen or so people who were there, many could not speak on the record because of the positions they now hold. Said one of those present: It was a tough room. She got more pushback than she was used to.
Added this individual: I was shocked that the request was made. The vast majority of us thought don't ask, don't tell was stupid, but getting us to carry her water on military recruitment through the back door was a bridge too far. I came to view her as a very smooth political person.
Kate Buzicky, a Rhodes scholar, now an Army captain, was treasurer of the Veterans Association.
Captain KATE BUZICKY (U.S. Army; Former Treasurer, Veterans Association): I can't speak for everyone in the group, but I think the sentiment was that it was more of a, you know, fellowship and social organization, and they wanted to stay within that kind of role on campus.
TOTENBERG: Another officer of the club recalls the Kagan meeting as quite a bit less contentious. I don't remember us turning her down. We agreed to do a half-step less than she wanted.
In the end, the student veterans association posted on the Harvard website a somewhat ambiguous announcement declaring that it had decided to accept a, quote, "limited interim role to assist fellow classmates." While the group declined to serve in a formal liaison capacity for the school, it still sent out emails to the student body announcing when a military recruiter would be on campus and letting students know how to arrange interview times on campus.
Many of the student vets saw the controversy as more symbolic than real. Lieutenant Colonel Rob Bracknell had served 13 years in Iraq, Bosnia and elsewhere when he came to Harvard for a special master's program in international law.
Lieutenant Colonel ROB BRACKNELL (U.S. Marine Corps): I can see where she was trying to facilitate two dual goods that may have been running at cross purposes with each other at the time.
TOTENBERG: There were more and back-and-forths in the policy and the law over the next 16 months. But in March of 2006, the whole question became moot when the Supreme Court unanimously upheld the Bush administration's interpretation of the law.
Harvard Law School Dean of Students Ellen Cosgrove says Kagan was under enormous pressure over the school's military recruitment policy. The Association of American Law Schools was threatening schools' accreditation if they discriminated in the treatment of gay students. The state of Massachusetts had an anti-discrimination law. The school's gay rights organization cared deeply about the policy.
Ms. ELLEN COSGROVE (Dean of Students, Harvard Law School): It was an issue within the student population generally, faculty and staff. I'd say the strong weight of support was against having the military on campus.
TOTENBERG: But Cosgrove says that Kagan was trying everything to make sure that military recruitment did happen on campus. If the student vets had turned her down flat, Kagan had a backup plan for a faculty member to act as the facilitator.
Ms. COSGROVE: She did want to figure out a way to, one, support the military by sending them some of the best and brightest young lawyers that would be graduating from Harvard, and two, support the students who had an interest in a military career.
TOTENBERG: And Kagan apparently succeeded in that. The numbers of students who signed up with the military remained constant while she was dean. Occasionally, they even improved.
According to many vets interviewed for this story, Kagan went out of her way to make them feel welcome on the campus, mentioning their presence frequently in her public remarks and inviting them to a small dinner on Veterans Day each year.
Mr. ERIK SWABB (Iraq Veteran): I was really impressed.
TOTENBERG: Erik Swabb, an Iraq veteran, describes the dinners as a genuine exchange of views.
Mr. SWABB: I came away with a feeling that she really respected those who served in the military, and that meant a lot more than just the fact that, oh, she hosted a dinner for us.
TOTENBERG: Captain Robert Merrill, speaking by phone from his post in Afghanistan, says Kagan treated the veterans, quote, "like VIPs."
Captain ROBERT MERRILL (U.S. Marine Corps): I always joked with her that she would've made a fine Marine, just her style. She's kind of a strong personality, slightly intimidating, but everybody loves her because she's tough and she knows how to show people that she cared for the students. And I started calling her Colonel Kagan pretty much every time I've crossed paths with her.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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