Wash. Times parrots bogus attack on Kagan and Shariah law

A Washington Times editorial repeated the bogus conservative attack that Supreme Court nominee Elena Kagan “display[ed] selective moral outrage” because, according to the Times, she did not object to a gift Harvard accepted from a Saudi prince.

Gift was accepted by Harvard University, not Harvard Law School

Wash. Times: “Kagan was strangely silent about big money Harvard accepted from a questionable source while she served as the law school's dean.” From a June 17 Washington Times editorial headlined “Kagan and Shariah” and subheadlined “Supreme court nominee displays selective moral outrage” :

Supreme Court nominee Elena Kagan faces new questions about her stance on the U.S. military, just 10 days before confirmation hearings are scheduled to begin. Sen. Jeff Sessions, Alabama Republican, wants to know why Ms. Kagan was strangely silent about big money Harvard accepted from a questionable source while she served as the law school's dean.

Ms. Kagan apparently made no public objection to a $20 million gift from a Saudi prince in late 2005, even though Saudi Arabia's shariah law provided flogging or death as punishment for any individual caught engaging in homosexual activity.

But contrary to Wash Times' suggestion, prince's gift was accepted by Harvard University, not Harvard Law School. Contrary to The Washington Times' suggestion, Harvard University, not Harvard Law School - where Kagan served as dean - accepted the Saudi prince's gift. Prince Alwaleed Bin Talal's 2005 gift to Harvard University established the Islamic Studies Program at Harvard University. According to the university, the program “bring[s] together faculty, students, and researchers from across the University and coordinat[es] their activities through one Program housed within the Faculty of Arts and Sciences.”

Wash. Times editorial did not cite any evidence of discrimination as a result of Harvard's Islamic Studies program. The Times editorial did not cite any evidence of discrimination that resulted from the creation of Harvard University's Islamic Studies Program. The program offers a wide variety of courses, including “Religion in Global Politics,” “Early Iranian Civilizations,” and “Christianity Along The Silk Road.”

Harvard has reportedly rejected gift from donor it believed was tied to “anti-American and anti-Jewish” sentiment. From a December 13, 2005, Boston Globe article:

Gifts to Harvard from wealthy Arabs also have been controversial in the post-9/11 environment.

Donations during the 1990s to the schools of law and design from relatives of Osama bin Laden were criticized after 9/11. But the money had no known ties to bin Laden or terrorism, and Harvard kept the gifts. Last year, Harvard Divinity School returned a $ 2.5 million gift from the president of the United Arab Emirates because of the president's ties to an Arab League think tank with alleged anti-American and anti-Jewish leanings.

But problems with the Alwaleed donation do not seem probable. The prince, who is a nephew of Saudi King Abdullah, is widely known for his pro-American views and for his major investments in the United States.

Kagan did not “def[y]” the Solomon Amendment

Wash. Times: Kagan “openly defied” the Solomon Amendment, continuation of recruitment through veterans association “a laughable fig leaf.” The June 17 Washington Times editorial cited “Ms. Kagan's policy of denying military recruiters access to the official campus Office of Career Services” and added:

Ms. Kagan took this action in protest of the “Don't Ask, Don't Tell” policy that she called a “moral injustice of the first order.” The move openly defied a specific act of Congress known as the Solomon Amendment. Ms. Kagan later joined in a brief to the Supreme Court on the question and was shot down 8-0.

Mr. Sessions blasted the hypocrisy in a statement. “Don't Ask, Don't Tell was created and implemented by President Clinton,” he said. “Where was her outrage during the five years she served in the Clinton White House? ... Instead of taking a stand in Washington, Ms. Kagan waited until she got to Harvard and stood in the way of devoted, hardworking military recruiters.” She did so “in clear, open defiance of federal law.”

Ms. Kagan's defenders argue that she still allowed the school's “veterans association” to facilitate student access to military representatives. This move was a laughable fig leaf. As Mr. Sessions noted, the association itself published an open letter saying that its “tiny membership, meager budget, and lack of any office space” made its capabilities nearly nil.

In fact, Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. Throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services (OCS) or through the Harvard Law School Veterans Association. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S. Court of Appeals for the 3rd Circuit struck down the Solomon Amendment, which required law schools to grant equal access to military recruiters or lose federal funding. As The New York Times explained in a May 6 article:

[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.

[...]

[E]ven when she ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students. [emphasis added]

Kagan argued that Harvard was in compliance with the Solomon Amendment. Kagan joined a Supreme Court brief filed on behalf of 40 Harvard law professors. The brief argued that the government's interpretation that the Solomon Amendment required schools to provide full access to military recruiters was incorrect. The brief argued that the Solomon Amendment did not require schools to provide special access to military recruiters. Thus, because Harvard applied the same anti-discrimination policy to the military that it applied to all employers, the brief argued that Harvard was not in violation of the Solomon Amendment. In 2006, the Supreme Court disagreed with Kagan's argument as well as the 3rd Circuit's First Amendment ruling and reversed the 3rd Circuit's decision.

Moreover, Harvard Law military recruitment was not diminished by Kagan's tenure. The Times' suggestion that military recruitment was adversely affected by Kagan's actions is contradicted by data Media Matters obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could only have affected the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes.

Kagan pledged to defend Solomon Amendment as solicitor general despite her personal views. In a written statement during her confirmation process for solicitor general, Kagan wrote:

As I stated at my confirmation hearing, I know well the facts and issues involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006), and I feel confident in saying that had I been Solicitor General at the time that the 3rd Circuit held the Solomon Amendment unconstitutional, I would have sought certiorari in the Supreme Court, exactly as then-Solicitor General Paul Clement did.A fortiori, now that the Supreme Court has upheld the Solomon Amendment, if confirmed I would vigorously defend it against constitutional challenge. I would not recuse myself from participating in or personally arguing such a case because I would feel confident in my ability to supply such a defense given the responsibilities and role of the Solicitor General. I understand that role as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients. And as I hope I expressed at my confirmation hearing, I would take enormous pride in representing and advancing the interests of the United States as a client -- even if I would not myself have voted for every one of its statutes. [emphasis added]