Picture a top-flight Jewish high school student applying to Harvard in the 1920s. The college rejects him, at a time when administrators want to limit the number of Jewish students. The rejected student ends up at the City College of New York, a fine school. Ninety years later, newly enlightened, Harvard grants the now-dead student a Harvard bachelor of arts degree.
The fanciful, uncomfortable-sounding scenario arises with the White House announcement that President Barack Obama will be presenting the Medal of Honor to 24, mainly Jewish and Hispanic, fighting men for heroism in long-ago wars.
First, all honor and respect must extend to what these men did in World War II, the Korean War and the Vietnam War. They served their country admirably, and some paid the ultimate price.
Several questions also arise, both about standards of proof and about remedies for past acts and atmospheres.
The White House announcement explained that the 2002 National Defense Authorization Act ordering a Pentagon review was designed "to ensure those deserving the Medal of Honor were not denied because of prejudice." That was, indeed, the implicit purpose of the Leonard Kravitz Jewish War Veterans Act of 2001, which got the ball rolling in the House of Representatives.
Neither the House nor Senate bills explicitly stated that the review was to seek out cases where the Medal of Honor had been denied "because of" prejudice, and the topic did not arise during House or Senate floor debate or in the defense bill's conference report. There were no published congressional findings concerning prejudice, nor were there any apparent congressional hearings on the subject.
Everyone understood, though, that racism and anti-Semitism existed in the military. Without a doubt, racism and anti-Semitism drove some decisions, including who gets what award. The Medal of Honor review was designed as a remedy for these past acts.
Supporters of the Medal of Honor review note that only 17 Medals of Honor have gone to Jews, out of more than 3,400 awarded since 1861, according to author Sy Brody. Supreme Court aficionados may want to think of these as Yick Wo numbers: statistical evidence of discrimination despite a statute's facial neutrality.
The existence of discrimination in general is not the same, however, as the existence of discrimination in a particular case. Here comes the question about standards of proof: Did the Defense Department find documented evidence -- memos, letters, interviews -- that discrimination was the reason why a particular Medal of Honor was not awarded?
Probably not, though we don't yet know all the details about the Pentagon review. First, a fire destroyed many military records years ago. Besides, discrimination when pervasive doesn't need to be put down in writing.
So: There was apparently a presumption that generalized prejudice was the reason why a particular Jewish or Hispanic fighting man did not receive the Medal of Honor. The Pentagon review thus turned on the acts of military valor themselves.
Here comes the question about remedies: Is it the Pentagon's contention that only the 24 selected recipients deserve the Medal of Honor and that others in the pool of candidates -- say, numbers 25 and down on the list -- do not? Or, was there a subjective, tactical determination that there should be a limit to how many medals could reasonably be presented?
On March 18, the awards will be presented.
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