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PolitiFact: Supreme Court rejected Kagan's position on military recruiters at Harvard

The statement

On military recruiters at Harvard, Elena Kagan "took a position and the Supreme Court ruled unanimously that she was wrong."

Sen. John Barrasso, R-Wyo., Monday on Fox News

The ruling

The controversy over military recruiters began before Supreme Court justice nominee Kagan became dean of Harvard Law in 2003. Harvard was one of several top-tier law schools that tried to ban military recruiters because of a policy that prevented gays and lesbians from serving openly in the military.

Congress threatened to yank funding for schools that banned recruiters through a measure known as the Solomon Amendment. Schools and recruiters tried to sort out their differences in the intervening years, with some schools providing partial access. The issue came before the Supreme Court in 2004 in Rumsfeld vs. Forum for Academic and Institutional Rights, or FAIR. FAIR was an association of law schools that opposed the Solomon Amendment.

In her role as a professor of law at Harvard, Kagan signed onto an amicus brief (sometimes known as a "friend of the court" brief) filed by 40 Harvard professors that argued that the federal government should not be able to withhold funding if the schools applied the same policies to all recruiters. Harvard required all recruiters to sign forms indicating they would not discriminate against applicants based on sexual orientation.

The Supreme Court, however, disagreed in an 8-0 ruling on March 6, 2006. The opinion, written by Chief Justice John Roberts, rejected the claims of Kagan and the other law professors that the school had the right to enforce nondiscrimination policies. "Under the statute, military recruiters must be given the same access as recruiters who comply with the policy," the opinion said.

Justice Samuel Alito did not participate because he had not yet been seated to the court when oral arguments were made.

Barrasso said "the Supreme Court ruled unanimously that (Kagan) was wrong" and we rate the statement True.

This ruling has been edited for print. For the full version, and other rulings, go to

PolitiFact: Supreme Court rejected Kagan's position on military recruiters at Harvard 05/11/10 [Last modified: Tuesday, May 11, 2010 10:34pm]
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