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Kagan Military Controversy: AP Fact Check Shows She's No Ivory-Tower Peacenik

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WASHINGTON — Elena Kagan is no ivory-tower peacenik.

Judging by her own words, the Supreme Court nominee held the armed forces in high regard during her tenure as Harvard Law School dean. She had one beef with the institution, a big one: its "repugnant" prohibition on openly gay service members.

Republicans are using that to portray her as an anti-military activist and to accuse her – groundlessly – of acting outside the law in restricting military recruiters on campus.

If anything, the record shows Kagan defended Harvard's conditions for on-campus military recruitment with less than a full-throated roar.

When her school risked losing federal money because of its policy, she caved.

When courts ruled this way and that on the matter, the school complied. And when other law schools sued to uphold their similar policies on military recruitment, she and other Harvard professors filed a brief supporting their argument but took a pass on joining the suit.

At issue is a Harvard policy from 1979 denying the use of its career-placement center to organizations that discriminate in their recruitment. The armed forces discriminate against openly gay members. Harvard's on-and-off compromise has been to allow a student veterans group to recruit on the campus without the career center's assistance.

Kagan did not throw military recruiters off campus, as some critics contend. Neither did she extend a full welcome.

In a 2007 West Point speech that reads like a valentine to the armed forces, Kagan mentioned prominently, if in passing, her objection to the government's "don't ask, don't tell" policy.

"But I would regret very much," she added, "if anyone thought that the disagreement between American law schools and the U.S. military extended beyond this single issue."

Now some assert just that, in a line of criticism coming to the fore as the Senate prepares for her confirmation hearings.

A look at recent claims and underlying facts:

THE CLAIM: "I see no reason why you would appoint an anti-military Supreme Court justice or why the Senate would confirm an anti-military Supreme Court justice," former Republican House Speaker Newt Gingrich said on "Fox News Sunday." He said "she led the effort, which was repudiated unanimously by the Supreme Court, to block the American military from Harvard Law School."

THE FACTS: In the heat of the recruitment debate, and after, Kagan praised military service as "the noblest of all professions" and a "socially valuable career path" that should be open to all. "I know how much my security and freedom and indeed everything else I value depend on all of you," she told West Point cadets.

Her words were double-edged in a 2003 e-mail to the law school community embracing the value of the armed forces while sharply criticizing the policy against homosexuals: "The importance of the military to our society – and the extraordinary service that members of the military provide to all the rest of us – makes this discrimination more, not less, repugnant."

The e-mail defended the school's earlier decision to set aside restrictions on the armed forces and to allow – not ban – military recruitment.

THE CLAIM: Kagan "was not in compliance with the law at various points in her tenure, and it was because of a deep personal belief. ... This is no little bitty matter," Alabama Sen. Jeff Sessions, senior Republican on the Judiciary Committee, said on ABC's "This Week."

THE FACTS: Harvard's policy began before she came to the school; she amended it according to changing circumstances as well as her own beliefs. At no point did she defy a court decision that would have placed her "not in compliance with the law."

Harvard Law School lifted its restrictions in 2002 under pressure from the Bush administration and congressional Republicans who threatened to cut off payments. Kagan decided to continue allowing military recruiters to use services of the campus career office when she became dean in 2003, despite her strenuous objections to the policy on gays.

In 2004, an appeals court ruled that a law enabling the government to withhold the money was unconstitutional. In response, Kagan quickly renewed the ban on recruiters using the campus office while allowing them to work through the student veterans group. The veterans group did not have its own physical space, but could still reserve a room on campus for the interviews.

But when the school faced another threat of losing federal financing, she backed down, just as her predecessor had done in 2002. Then in 2006, the Supreme Court unanimously reversed the lower court and found it was constitutional to deny financing to schools that restrict military recruiting.

___

AP writer Denise Lavoie contributed to this report from Boston.

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