The Elena Kagan nomination has re-un-corked discussion about Don’t Ask Don’t Tell. Kagan, while serving as dean of Harvard Law School (HLS), wrote an email criticizing Don’t Ask Don’t Tell, calling it “repugnant.” You can read the full text of the letter here. As Kagan explains in the letter, HLS has a policy that requires recruiters to sign a statement saying their recruitment will not be discriminatory. Kagan explains that because of the military’s Don’t Ask Don’t Tell policy, HLS had previously prevented military recruiting on the HLS campus. However, Kagan’s predecessor had lifted the ban, as maintaining the ban risked losing federal funding for Harvard, via the Solomon Amendment. Kagan wrote the email in question to explain to the HLS community why, as dean, she decided to maintain her predecessor’s policy, despite her opposition to Don’t Ask Don’t Tell.
After an appellate court ruled in 2004 that the Solomon Amendment violates First Amendment rights, Kagan re-instituted the ban. However, when the Supreme Court unanimously overturned this decision in 2006, Kagan once again lifted the ban, therefore removing any danger that Harvard might lose its federal funding. So the Kagan ban lasted just one semster.
Many are criticizing Kagan’s actions, and one argument in particular jumps out at me. From Ilya Somin at The Volokh Conspiracy:
Even more importantly, the military’s unjust policy in this one area has to be weighed against the many good things the armed forces do, including their vital role in protecting our lives and freedom against outside enemies. In this regard, there is much to be learned from the position that black leaders took during World War II. Even though the armed forces were then segregated by law and otherwise engaged in egregious discrimination against blacks, the NAACP and other civil rights organizations supported military recruiting because they recognized that the enemies the military was fighting were far worse than the racist injustices of the armed forces themselves. As Joe Louis put it at the time when asked why he was promoting recruitment of blacks into a segregated military, “[t]here may be a whole lot wrong with America, but there’s nothing that Hitler can fix.”
Or as Somin’s fellow Volokh blogger David Bernstein said in 2005:
A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military’s policies (as Truman eventually did in 1948)?
These arguments overlook the ways that African American leaders during WWII exploited the country’s need for national unity to force changes in government policy. How about A. Philip Randolph’s decision to stage a March on Washington in 1941 to demand equal war-mobilization employment opportunities for African Americans? Randolph claimed the march would not harm America’s national unity:
Negro America must bring its power and pressure to bear upon the agencies and representatives of the Federal Government to exact their rights on National Defense employment and the armed forces of the country. I suggest that ten thousand Negroes march on Washington , D.C. with the slogan: “We loyal Negro American citizens demand the right to work and fight for our country.” No Propaganda could be whipped up and spread to the effect that Negroes seek to hamper defense. No charge could be made that Negroes are attempting to mar national unity. They want to do none of these things. On the contrary, we seek the right to play our part in advancing the cause of national defense and national unity. But certainly there can be no national unity where one tenth of the population are denied their basic rights as American citizens.
But a disruption to war mobilization was exactly what FDR feared. As Daniel Kryder explains in Divided Arsenal:
…[T]he march date of July 1 fell, as it turned out, at a critical moment in the nation’s unfolding engagement with the war. Roosevelt did not take a strong lead during the spring 1941 crisis, when Hitler’s forces prevailed in Egypt, Yugoslavia, and Greece. The president knew his navy was too thin to effectively patrol both the Atlantic and the South Pacific, and he thought the American public was unprepared for war. By early June, however, FDR had apparently concluded that the nation would join the fighting; he was simply waiting for someone else to “fire the first shot.”
The Roosevelt administration tried to convince Randolph to call off the march, but Randolph would not relent. Finally, FDR signed Executive Order 8802, which banned employment discrimination in America’s national defense program, and Randolph cancelled the march. While wartime seems to be a dangerous time to engage in struggles to end military employment discrimination, it’s actually when such endeavors are most likely to be successful.
