Adorned with a large Black Lives Matter flag and scattered with books on critical race theory, Dr. Alan Kennedy’s J.D. ’09 office tells you a lot about his passions, values and goals as a professor at the College of William and Mary. A lawyer, veteran, lecturer of public policy and captain in the U.S. Army Reserve, Brooklyn-born Kennedy began teaching at the College, his law school alma mater, in the fall of 2021.
Although Kennedy comes from a family of teachers, he said he never expected to end up as a professor.
“I came to this in a very circuitous route I went to college, and then came down here for law school immediately after college and thought ‘I’m going to be a lawyer.’ My dream was always to go into constitutional law and to defend people and to defend civil liberties and civil rights, and then reality hit,” Kennedy said.
Graduating law school during the Great Recession through the joint degree program (J.D./M.A.) in American studies, Kennedy began working for former Pennsylvania Gov. Ed Rendell as an attorney in the state government. Later, under current Pennsylvania Gov. Tom Wolf, Kennedy had an opportunity to work on policy regarding criminal justice at the Pennsylvania Department of Corrections. After this experience, Kennedy pursued his Ph.D.
During his Ph.D. program at the University of Colorado Denver’s School of Public Affairs, Kennedy was deployed mid-program to the Middle East from 2018 to 2019. Kennedy joined the Pennsylvania Army National Guard in 2012 and transferred to the Colorado National Guard later on. He most recently transferred to the United States Army Reserve as a captain and works with the Reserve Officers’ Training Corps.
“I joined the army to fight fascism,” Kennedy said. “My great uncle was a volunteer in the Abraham Lincoln Brigade fighting Franco in Spain and then Hitler in Germany. My dad’s family is Jewish, so that inspired me to join the military. Ironically, I wound up fighting for constitutional rights in the military, and I’m very proud of that.”
Prior to his deployment, Kennedy was initially placed as field artillery in Fort Benning, Ga.. A year later, Kennedy was sent to an officer candidate school, and the following year he was selected to go to school to become a Judge Advocate, part of the United States Army Judge Advocate General’s Corps — the military justice branch — in 2014. As a JAG, Kennedy has had jobs as both a trial defense counsel representing soldiers and as an advisor to commanders, witnessing many things that he would like to see changed.
“You have to understand the institution and its rules in order to change them,” Kennedy said. “That’s where we talk about the intersection of constitutional and administrative law, it’s why I teach Critical Race Theory and talk about systemic racism. In many ways, I have tried to create change from within. It’s an uphill battle.”
Kennedy also engages in pro-bono work, which he says is one of the most interesting parts of being a lawyer. Notably, Kennedy worked as the lead attorney on the Hagig v. Trump case defending his friend Zakaria Hagig, a Libyan international student at the University of Colorado Denver who was subject to former President Trump’s “Muslim ban.” His team sued President Trump to overturn the executive order as it applied to international students and won. Because of this case, every subsequent iteration of the Muslim ban no longer applied to international students.
“It was very exciting,” Kennedy said. “We filed that case less than thirty days into President Trump’s time in office.”
Most recently, Kennedy was chosen to be one of Colorado’s nine presidential electors for President Joe Biden and Vice President Kamala Harris. Kennedy mentioned that former President Trump attempted to steal his vote.
“I actually intervened in a federal lawsuit on behalf of Mike Pence to pressure Mike Pence into doing the right thing — he did. That was a crazy lawsuit,” Kennedy said.
The suit, filed by Texas congressman Louie Gohmert and Arizona Republicans acting as fake presidential electors, tried to force former Vice President Mike Pence to steal votes and skew the election results toward Donald Trump. The case was thrown out Jan. 1, 2021, five days before the attack on the United States Capitol.
“Fortunately, it didn’t work,” Kennedy said. “Democracy survived, barely.”
Also involved with public policy, Kennedy has helped write some notable policies, including a bill to ban bump stocks that the Denver City Council passed after the 2017 mass shooting in Las Vegas, Nv.. Kennedy mentioned that he wrote his Ph.D. dissertation on gun policy.
“I always say that when we study law, we try to figure out what the law is; public policy focuses on what the law should be,” Kennedy said. “I’m happy teaching students how to become policymakers, that takes most of my time. One of my courses is Law and Public Policy which I co-teach with Chris Byrne, the law librarian. That brings together public policy students and law students.”
Kennedy also teaches Introduction to Public Policy at the undergraduate level, and is working on creating a class related to race and public policy. He has also applied to teach both critical race theory and the First Amendment at the Washington Center.
Kennedy believes his teaching is in opposition with Gov. Glenn Youngkin’s banning of CRT in schools.
“I’m sure that Gov. Youngkin would say that what I teach should be banned,” Kennedy said. “Unfortunately, we’re stuck with Gov. Youngkin for the next four years. I think it has been brought into stark relief how far we still need to go toward racial equality and equity in America. The United States still has not reckoned with the legacy of slavery.”
Further information regarding Kennedy’s opinions on Youngkin’s CRT ban and COVID-19 policies can be found in his recent opinion piece for The Flat Hat.
In 2020, Kennedy received a reprimand from the commanding general for the Colorado Army National Guard, Brigadier General Douglas Paul, as well as other National Guard leadership, under Department of Defense Instruction (DoDI) 1325.06 for attending a Black Lives Matter protest while in plain clothes.
Enclosure three, paragraph six of DoDI 1325.06 states that “members of the Armed Forces are prohibited from participating in off-post demonstrations under any of these circumstances,” the fourth of which states “violence is likely to result.”
“Brigadier General Douglas Paul said that Black Lives Matter protests are inherently violent. His chief of staff, Colonel Charles Beatty, said that Black Lives Matter protests begin peacefully, and devolve into violent clashes with the police,” Kennedy said. “Those statements are racist.”
These statements ended up being the basis for at least three investigations, two reprimands, and two negative evaluations against Kennedy, as well as a denial of an award and a delay of transfer to the U.S. Army Reserve.
“All because I peacefully protested with thousands of other Black Lives Matter protests on May 30, 2020, in a peaceful march from the state capitol down one of the widest boulevards in Denver. It ended with the police, without provocation or use of force, the police opened fire with clouds of tear gas on the protestors,” Kennedy said. “In basic training they tear gas you, so I knew what it was.”
The only reason why the military knew where Kennedy was on that day is due to a 2020 op-ed he wrote in The Denver Post criticizing the police response to the peaceful protest, stating that they “violated their use of force policy’s requirement to ‘give clear and concise verbal commands…prior to, during, and after the deployment of any less lethal weapon.”’
For one year, Kennedy attempted to get any kind of redress from the chain of command to no avail. This eventually resulted in Kennedy writing and filing a lawsuit against the military for violating his First Amendment right to peacefully protest systemic racism. In January 2022, two Army Review Boards found that both Brigadier General Paul and Colonel Beatty made false statements, and unconstitutionally targeted his Black Lives Matter protest participation and his First Amendment rights.
The case continues today, as the military has not fully removed all negative documents from Kennedy’s file and continues to keep the violation of DoDI 1325.06 on the books. Kennedy is not only attempting to remove the negative files, but also to overturn DoDI 1325.06 entirely, a process that has been going on for nearly a year. This case is also the reason why Kennedy was recently named one of the Top 40 Young Lawyers in America by the American Bar Association.
“They’ve told the court that members of the military don’t have any constitutional rights,” Kennedy said. “There’s not much case law in this, the military’s lawyers admitted before the court that it was a matter of first impression, which means it’s the first time that this regulation is directly challenged in federal court.”
Kennedy added that the military was particularly harsh in this case because they disliked the content of his speech, stating that the Department of Defense continues to defend this unconstitutional regulation and deny that it has anything to do with systemic racism.
“Saying that Black Lives Matter protests are inherently violent is an attack on the movement itself,” Kennedy said. “It’s a denial that systemic racism exists. And as long as the military punishes Black Lives Matter protest participation, and not the generals who violate people’s constitutional rights, racism will continue to exist.”
Kennedy is not the first member of the military to participate in protest, and he is not the first member of the military to write op-eds. This is, however, the first time this provision has ever been applied to a member of the military.
“The military has tried to silence me,” Kennedy said. “My response has been to exercise my freedom of speech. The reason we have had so much success is because of the visibility of our case.”
No longer an attorney in this case, Kennedy has now taken a step back as plaintiff, with three attorneys now representing him pro bono.
“It’s so hard to hold institutions accountable,” Kennedy said. “It costs almost five hundred dollars to file a lawsuit, that doesn’t even include attorney’s fees, that’s just the filing fee. And then, from there, we’ve been in court for almost a year without a decision yet.”
Kennedy said that the court case is currently looking successful, with the military removing the reprimand in response to the Army review board decisions. However, the second negative evaluation has not been removed, which is another career-killing piece of paper which could prevent him from being promoted to the position of major. Kennedy believes that a ruling in his favor would set precedent that the regulation his team is challenging is unconstitutional as well as protect the right to protest.
“This is so much bigger than me. This case is about recognizing that racism is real, and that members of the military have constitutional rights,” Kennedy said. “The First Amendment means that we defend the speech with which we disagree, so that we have the freedom to express our views, and speaking truth to power is the essence of the right to peacefully protest.”
Kennedy believes this reprimand would never have been issued had he attended any other protest, but emphasized that his struggle pales in comparison to those impacted by racially motivated police abuse, specifically mentioning the deaths of George Floyd, Breonna Taylor, Elijah McClain and Amir Locke.
“There are members of the military who participated in insurrection on January 6 who have not been punished as much as I have by the military,” Kennedy said. “Every member of the military took an oath to defend the Constitution of the United States. Some people have forgotten that, some people have forgotten their oath. If the military doesn’t defend constitutional rights, then it’s just people with guns.”
Passionate about constitutional rights, a large reason why Kennedy teaches at the College is because of its emphasis on academic freedom.
“If I’m not making somebody uncomfortable, I’m probably not creating change,” Kennedy said.
To students, Kennedy suggests pondering how they will change the world, and he hopes he can inspire students to do so.
“I think it’s exciting to watch students at the College figure out what they want to do with their lives, how they want to change the world, fortunately that’s my job. I have the best job in the world,” Kennedy said. “I expect to be here a very long time, they’re going to have to drag me out.”
CORRECTION (03/08): Article updated to take out the word “former” in Prof. Alan Kennedy’s full title as he is currently an Army officer.