Kagan questioned military recruitment policy in 2003

One of the White House's potential nominees for the Supreme Court is receiving some attention this weekend for comments she previously made about military recruiters.

As dean of Harvard Law School, now-Solicitor General Elena Kagan at least once decried a federal law that requires colleges and universities to permit military recruiters on campus, or face the loss of their federal aid.

"This action causes me deep distress," Kagan wrote in an e-mail in 2003, which The Washington Post first reported Saturday. "I abhor the military's discriminatory recruitment policy," she added, noting the rule is "a profound wrong -- a moral injustice of the first order."

A number of post-secondary schools have long rebelled against this rule, best known as the Solomon Amendment, most commonly citing the U.S. military's historic ban on gays from serving as discriminatory. Kagan, too, seemed to be in that camp, though the Supreme Court later affirmed the law in 2006.

The justices ruled unanimously in the Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) case that the policy did not infringe on students' First Amendment rights. The court rejected the schools' assertion that the presence of military recruiters was a form of "expressive association" signaling the institution's support for "Don't ask, don't tell."

"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 Roberts wrote in the majority opinion. "The Solomon Amendment neither limits what law schools may say nor requires them to say anything."