When Elena Kagan became dean of the law school the next year, she faced a moral dilemma over whether to continue that policy.
She said she abhorred the military’s refusal to allow openly gay men and lesbians to serve. And she was distressed that Harvard had been forced to make an exception to its policy of not providing assistance to employers that discriminated in hiring.
But barring the recruiters would come with a price, costing the university hundreds of millions of dollars in federal money.
The choices she made during that long-running episode are now under scrutiny as Ms. Kagan, now the solicitor general, has become a leading potential nominee to the Supreme Court. Her 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.
She repeatedly criticized “don’t ask, don’t tell,” the policy that bars gay men and lesbians from openly serving in the military. At one point she called it “a moral injustice of the first order.” She also joined a legal brief urging the Supreme Court to overturn the law that denied federal funds to colleges and universities that barred military recruiters.
But even when she later 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.
Republicans have signaled that they intend to pounce on Ms. Kagan’s forceful criticism of the military’s policy on gay soldiers — and her challenge to the law — if President Obama nominates her to the court. But the view from Harvard is more complex.
Far from being rebellious, her colleagues here say, Ms. Kagan bowed to the will of Lawrence H. Summers, then the president of the university and now director of Mr. Obama’s National Economic Council. Mr. Summers had appointed her dean and did not want Harvard to fight the federal government. Ms. Kagan did not join in when more than half the law school faculty publicly urged him to sue the government over the law that tied federal money to military recruitment.
A truly radical act, suggested Robert H. Mnookin, one Harvard law professor, would have been for Ms. Kagan to quit.
“Elena is very good at reading the lay of the land, at having a sense of who is where on what issue and what the art of the possible might be, who can be influenced, who cannot,” said Professor Mnookin.
“In that sense of being political, she is extremely gifted,” he said. “She’s very purposeful.”
Her supporters say that despite the outcome, which was dictated first by the university’s needs and then by the Supreme Court, she demonstrated her resolve to fight discrimination.
“This is not an issue where it was easy to put your finger in the air and see which way the wind was blowing,” said Charles J. Ogletree, a Harvard law professor who supported challenging the military policy. “There was very little benefit to her personally by weighing in on one side.”
The issue arose long before Ms. Kagan, who graduated from Harvard Law School in 1986, came back as a professor and became dean in 2003.
Because of the military’s policy against openly gay soldiers, the law school in 1979 barred military recruiters from using its Office of Career Services, the central clearinghouse through which employers from all over the world seek to recruit top-notch law students.
But in the mid-1990s, Congress approved several versions of the Solomon Amendment — named for Representative Gerald B. H. Solomon, a conservative Republican from upstate New York — denying federal funds to schools that barred military recruiters.
The amendment forced many law schools to carve out a military exception to their recruitment policies, which said they would not help employers that discriminated in their hiring practices.
Harvard reached its own accommodation in 1996. While the school did not allow military recruiters to use its main placement office, it did allow them on campus through the Harvard Law School Veterans Association, a student group. The recruiters met with students in the same classrooms, just under different sponsorship.
The atmosphere changed after the terrorist attacks of Sept. 11, 2001. In stepping up its recruitment efforts, the Bush administration expanded Solomon in 2002 to say that all federal funds could be revoked from an entire university even if only one school, like the law school, barred recruiters.
Christopher Cox, then a Republican congressman from California who supported the move, said at the time that it was a scandal that Harvard and other schools banished military recruiters “while cashing Uncle Sam’s checks for billions of taxpayer dollars.”
The change meant that Harvard faced a loss of $328 million in federal funds, or about 15 percent of its operating budget, almost none of which went to the law school. At that point, in 2002, the law school, under Dean Robert Clark, relented and permitted the military recruiters in its placement office.
Ms. Kagan became dean the next year and followed the same policy. But she also issued strong statements against “don’t ask, don’t tell.”
“The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,” she said shortly after becoming dean at the law school’s first reunion for its gay, lesbian and bisexual alumni.
Later, as the issue intensified with protests on campus, she wrote in an e-mail message to students and faculty, “I abhor the military’s discriminatory recruitment policy.”
Some were disappointed that said she did not back her words with actions and challenge the government.
“Harvard was not a leader on this issue, and that was very painful,” said Amanda C. Goad, 31, a lawyer in New York who was president of HLS Lambda, a gay student rights organization, when she attended the law school. But Ms. Goad, who graduated in 2005, said, “Dean Kagan was trying to manage a very difficult situation, and it wasn’t an issue she could simply or easily resolve in our favor.”
Ms. Kagan did join more than half the faculty in January 2004 in signing an amicus brief when a coalition of law schools challenged Solomon in an appeal to the United States Court of Appeals for the Third Circuit, in Philadelphia.
In November 2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional, saying it required law schools “to express a message that is incompatible with their educational objectives.”
The day after the ruling, Ms. Kagan — and several other law school deans — barred military recruiters from their campuses. In Harvard’s case, the recruiters were barred only from the main career office, while Ms. Kagan continued to allow them access to students through the student veterans’ group.
But the ban lasted only for the spring semester in 2005. The Pentagon told the university over the summer that it would withhold “all possible funds” if the law school continued to bar recruiters from the main placement office. So, after consulting with other university officials, Ms. Kagan said, she lifted the ban.
After doing so, she and 39 other Harvard law professors signed an amicus brief urging the Supreme Court to invalidate Solomon. So did the university.
They all received a dose of reality in March 2006 when the court ruled, 8 to 0, against them.
“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” Chief Justice John G. Roberts Jr. wrote in the opinion.
The ruling had little practical effect, since most universities, including Harvard, were in compliance. Despite the legal setback, Ms. Kagan continued to express her views, if less vocally.
Capt. Kyle Scherer, 25, who graduated from the law school last year and is now a military intelligence officer with the Army in Afghanistan, said by phone last month from Kabul that Ms. Kagan always supported students interested in the military. When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, “we distinguish between those who serve their country and the discriminatory policy under which they serve.”
Last year, when he was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain’s bars on his shoulder.
During her confirmation hearings last year to become solicitor general, she said she would uphold Solomon.