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Kagan on Race and Diversity

It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision - Justice John Paul Stevens in dissent in Parents Involved v. Seattle School Districts

Understanding and KNOWING Elena Kagan's views on race and diversity are critical to evaluating her as a nominee for the Supreme Court. The hiring practices of Harvard Law School while she was Dean are already a matter of concern. Yesterday, Politico's Josh Gerstein characterized some memos by Kagan as expressing disagreement with race conscious remedies:

Other memos suggest that Kagan and Reed thought that the race initiatve was pressing for too many race-conscious solutions when the central focus should be a "race-neutral opportunity agenda." They did, however, concede an ongoing role for civil rights enforcement and "narrowly-tailored affirmative action programs."

I'm trying to get copies of these "other memos" so I can judge for myself but I do want to highlight the importance of the issue. A review of the Court's decision in Parents Involved demonstrates the stakes. In Parents Involved, Chief Justice Roberts wrote for a 5-4 majority:

Both cases present the same underlying legal question—whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments.

[. . . O]ur prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. [. . .] The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. [. . .] The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U. S. 265 (1978) , noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter, supra, at 324–325 (citing and quoting Bakke, supra, at 314–315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke, supra,at 315 (opinion of Powell, J.); internal quotation marks omitted).

The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330.

Roberts' hostility to ethnic, gender and racial diversity concerns is patent in his characterizations of Bakke and Grutter. Not surprisingly, Roberts went on to strike down the Seattle and Louisville plans:

Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).14 Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 320 (1986) (Stevens, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (Stevens, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting).

The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05–908, at 103a (describing application of racial tiebreaker based on “current white percentage” of 41 percent and “current minority percentage” of 59 percent (emphasis added)).

Roberts ended his opinion with his now infamous and fatuous exhortation that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." So the question is what does Elena Kagan think about all this? And what did the Justice she will replace, John Paul Stevens think about it? In a separate dissent (he also joined Justice Breyer's fine dissent), Justice Stevens wrote:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955) . The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”1 The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.2 In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (“history will be heard”), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (Roberts, C. J., dissenting) (“It is a familiar adage that history is written by the victors”).

The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.3 The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions—none of which even approached unanimity—grandly proclaiming that all racial classifications must be analyzed under “strict scrutiny.” See, e.g., Adarand Constructors, Inc. v. PeÅ„a, 515 U. S. 200, 227 (1995) . Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F. 3d 1162, 1193–1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring). The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See Craig v. Boren, 429 U. S. 190, 211 (1976) (concurring opinion).4

If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693,227 N. E. 2d 729.5 Rejecting arguments comparable to those that the plurality accepts today,6 that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment .” Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).

Invoking our mandatory appellate jurisdiction,7 the Boston plaintiffs prosecuted an appeal in this Court. Our ruling on the merits simply stated that the appeal was “dismissed for want of a substantial federal question.” School Comm. of Boston v. Board of Education, 389 U. S. 572 (1968) (per curiam). That decision not only expressed our appraisal of the merits of the appeal, but it constitutes a precedent that the Court overrules today. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971), by then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978), and by the host of state court decisions cited by Justice Breyer, see post, 25–27,8 were fully consistent with that disposition. Unlike today’s decision, they were also entirely loyal to Brown.

The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.

(Emphasis supplied.) Justice Stevens' last sentence bears repeating -- "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision."

The question presented to us now is would Elena Kagan?

Speaking for me only

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    Partial answer (5.00 / 2) (#2)
    by gyrfalcon on Thu May 13, 2010 at 09:44:03 AM EST
    Randall Kennedy, long-time leading lefty faculty member at Harvard Law, outlines the hiring process for faculty in this piece for Huffpo.  As I had guessed, Kagan did not have direct control of faculty hiring, though she of course had considerable influence on it.

    Kennedy also describes "her active and enthusiastic support for the Charles Hamilton Houston and Reginald Lewis Fellowship Programs at Harvard which have served as the launching pads for numbers of highly successful racial minority legal academics. Another was her assistance in forming an ad hoc committee (on which I sat) that sought to identify promising racial minority candidates"

    I would translate all this to mean she is likely at least dubious about outright quotas, but an enthusiastic supporter of affirmative action outreach.

    "Considerable influence" (none / 0) (#5)
    by Big Tent Democrat on Thu May 13, 2010 at 09:57:20 AM EST
    How did Kagan use her "considerable influence" and how did that result in the hiring record Harvard Law School compiled under her Deanship?

    Parent
    The relevant passage from (none / 0) (#15)
    by Anne on Thu May 13, 2010 at 10:29:00 AM EST
    Kennedy's HuffPo piece:

    First, it is mistaken to suggest, as some have, that the Dean of Harvard Law School is responsible for all that happens or does not happen with respect to hiring. The Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean's blessing. At the same time, the Dean does not have the power on her own to hire someone to the faculty. To be hired, a candidate must receive at least a majority, usually a super-majority, of votes. The Dean can seek to persuade, but the Dean at Harvard Law School cannot force professors to move when it comes to faculty hiring, traditionally the most contentious arena of struggle at a famously contentious institution.

    So, if the candidate doesn't get a super-majority of votes (from what body I'm not sure and Kennedy doesn't say - tenured faculty, a hiring committee?  I don't know), she can't go over their heads and hire someone, but by saying that no one gets hired without her blessing, does he intend that we conclude that she could decline to extend an offer even if a super-majority votes in a candidate's favor?

    Does it now lead us to ask, who did the committee vote to hire that Kagan declined to?  Does it lead us to ask who she attempted to lobby for hiring that the committee did not vote by super-majority to extend an offer?

    Clearly, Kennedy holds Kagan in high regard, and I'm happy to get his insight and assessment, but the reality of the hiring numbers is such that I very much hope this is a topic explored in some detail.


    Parent

    As Dean (none / 0) (#17)
    by jbindc on Thu May 13, 2010 at 11:00:49 AM EST
    She was the chief recruiter. That's why she is also being praised / villified for bringing a few controversial conservatives to campus.  

    Parent
    The answer to all questions (none / 0) (#18)
    by Cream City on Thu May 13, 2010 at 01:18:28 PM EST
    is yes, no, or whatever -- when a dean is a powerful dean, s/he can manipulate even the most powerful faculty/faculty governance system.  Why?  Because self-governance is hard work, and not the work that most faculty want to do, or they would be going for the big bucks as administrators do.  So faculty, already overwhelmed with 'way too many meetings (we are, therefore we meet:-), just want to get back to their research and teaching and grading, grading, grading (or, at Harvard, overseeing others doing grading, grading. . . .).

    And as I noted here the other day, a powerful and smart dean also almost ensures a foreordained outcome from a committee, as deans have a major role in selection of search committee members.

    I'm sure one and all will be stunned, I say stunned to find out that, in academe as elsewhere, people tend to replicate themselves in hiring -- and the more powerful the person in the hiring mix, the more likely that will be the result.  Example:  search committee on my campus some time ago for a chancellor was co-chaired by the chair of the economics department and by a community leader who is Hispanic.  Amazingly, the committee ended up recommending a Hispanic economist!

    It takes work to restructure -- approved through governance, etc. -- how search committees will be comprised to bring in different constituencies, i.e., community leaders as well as faculty, etc.  That's the way to get different outcomes. . . .

    Parent

    With great respect, Cream (5.00 / 1) (#20)
    by gyrfalcon on Thu May 13, 2010 at 01:37:30 PM EST
    that's a generalization that simply does not apply in this case.  And admin people such as deans generally don't get paid wildly more than tenured faculty at Harvard.  Department chairs, in my day at least, didn't get a penny extra.

    The governance structure at Harvard is intensely faculty-centered, and the faculty take that quite seriously and guard their authority with great jealousy.

    As Dean, Kagan got the hiring veto power that resides in the president for the faculty of arts and sciences.  How much influence she actually had would depend on a lot of things, including her tact and diplomacy and how much of her assistance, ie meddling, the faculty was willing to tolerate.

    Parent

    Accepted, and also with respect (none / 0) (#22)
    by Cream City on Thu May 13, 2010 at 02:59:07 PM EST
    as are you the one with insight from a father who was on faculty at Harvard?  Anyway, I have been ferreting for info, and I understand that there has been some change there -- and also that it is different in the law school (and other professional schools) than at Harvard in general; I don't recall if that commenter's father was in the law school.  Anyway, all that said, it still is more than a bit shrouded in mystery there -- and my comment was more about academe in general.

    Btw, deans do tend to get paid more by virtue of being 12-month appts (and department chairs by  summer stipends, more common today at larger campuses, at least).  Of course, stipends do not add to base pay so may not show up in surveys of same, dependent upon their research design.

    Parent

    FWIW (5.00 / 1) (#23)
    by squeaky on Thu May 13, 2010 at 03:01:04 PM EST
    From WaPo:

    Harvard Law professor Charles Ogletree, who worked with Kagan while she was dean, went further, saying the raw hiring numbers at the law school provide a skewed picture of her full commitment to diversity. "She reached quite broad and deep in trying to ensure that diverse candidates were in the pool," he said. "There has never been a doubt in my mind about her commitment to diversity."

    Justice Department spokeswoman Tracy Schmaler added that Kagan's hiring record as solicitor general "reflects a strong commitment to hiring qualified candidates of all races and genders." According to the department, Kagan's hires since March 2009 have included one white man, three white women, one Asian man and one Indian man.



    Parent
    Ah, useful. (none / 0) (#25)
    by Cream City on Thu May 13, 2010 at 04:30:45 PM EST
    That Ogletree says it says something.  As you no doubt know, but it's not clear from the link, he is African American and born to farmworkers in California -- and is a respected scholar on race and diversity (well, duh, he's at Harvard, so "respected scholar" is obvious -- but he not only has his law degree from Harvard but also did prior degrees in humanities and such at Stanford, I know, from someone I know there).


    Parent
    Full faculty (none / 0) (#19)
    by gyrfalcon on Thu May 13, 2010 at 01:25:07 PM EST
    at the law school, not a committee, has the final vote and ultimate say.

    Parent
    With all due respect, that may be true (5.00 / 1) (#21)
    by Anne on Thu May 13, 2010 at 02:28:31 PM EST
    at the end of the process - when a vote is taken - but based on this, from Kennedy's post:

    The Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean's blessing.

    she must have supported every candidate who made it out of the search process to a full vote - even if, ultimately, the faculty did not vote to hire.

    Am I thinking that through logically based on what Kennedy wrote?

    And does it seem logical then, if, in the search process, the Dean objected to a prospect, well before the actual voting process, that the candidate never made it out of the search committee to get a full faculty vote?  

    I hope this will all be explained in detail, because absent the detail, I'm really not sure how much weight to give any of this.  

    I do wonder - though we will never know - who didn't get the Dean's support?

    Parent

    Bingo. (none / 0) (#24)
    by Cream City on Thu May 13, 2010 at 03:07:40 PM EST
    Again, from the start -- with formation of the search committee, with its first task of the job description, where it is advertised, etc. -- the process can be so influenced.  And then, when those on a search committee are the ones to make the subjective judgments as to how to weight publications (this traditional law review vs. that emerging-field journal, etc.) and how to weight references to decide who lands on the short list . . . and then how to weight how candidates do in the exhausting days of interviews with dozens of people (this constituency's ranking vs. that one's ranking, i.e., senior faculty vs. junior faculty vs. students vs. alumni, etc.) . . . it's all a process that can be influenced in so many ways along the way, so that the final recommendation of the committee to the dean seems crystal-clear!

    Parent
    William Rehnquist (none / 0) (#1)
    by me only on Thu May 13, 2010 at 09:36:57 AM EST


    I Would Also Suggest (none / 0) (#3)
    by The Maven on Thu May 13, 2010 at 09:52:46 AM EST
    asking what Kagan's response/reaction would be to the concluding paragraphs of Justice Breyer's dissent:
    And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and Justice Thomas likens the approach that I have taken to that of segregation's defenders. But segregation policies did not simply tell schoolchildren "where they could and could not go to school based on the color of their skin," they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950's to Louisville and Seattle in the modern day--to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined).
        --  --  --
    Finally, what of the hope and promise of Brown? For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.
        --  --  --
    The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.
    (citations omitted)

    Since Kagan has apparently disavowed her 1995 argument on the importance of demanding real answers from Supreme Court nominees, we will likely be left guessing as to whether she believes Parents Involved is truly worthy of stare decisis.

    Thank you for (none / 0) (#26)
    by BackFromOhio on Thu May 13, 2010 at 06:47:38 PM EST
    this excerpt.  Rather poignant.  

    Parent
    It is unimaginable to me (none / 0) (#4)
    by andgarden on Thu May 13, 2010 at 09:54:46 AM EST
    that she would agree with Roberts on this issue. But of course, she should tell us.

    Not unimaginable (none / 0) (#6)
    by Big Tent Democrat on Thu May 13, 2010 at 09:58:04 AM EST
    For example, Cass Sunstein would have imo.

    Parent
    I said a few days ago (none / 0) (#8)
    by andgarden on Thu May 13, 2010 at 10:05:31 AM EST
    that one thing that would get me to oppose Kagan would be a heretofore undiscovered ideological closeness to Sunstein.

    I'm not seeing that so far.

    Parent

    If Sunstein was as closed mouthed as Kagan (5.00 / 4) (#10)
    by Maryb2004 on Thu May 13, 2010 at 10:07:55 AM EST
    and wrote as little as she did, you might not see it in him either.

    Parent
    Ding! (none / 0) (#11)
    by Big Tent Democrat on Thu May 13, 2010 at 10:09:47 AM EST
    Like mind, different temperament? (none / 0) (#12)
    by andgarden on Thu May 13, 2010 at 10:12:53 AM EST
    Sure, but the information we have points in the other direction--according to me.

    Parent
    On this issue? (none / 0) (#13)
    by Big Tent Democrat on Thu May 13, 2010 at 10:15:34 AM EST
    That simply is not true imo.

    We know nothing of what she thinks on these issues, and these memos may illuminate a view that I find objectionable (YMMV).

    Excepting some few areas where she has written or expressed a view, we know very little about what Kagan actually thinks.

    Parent

    We don't have much (none / 0) (#14)
    by andgarden on Thu May 13, 2010 at 10:17:24 AM EST
    "this issue" information. I agree with that completely. But we do have a fair amount of political philosophy information.

    Parent
    Difference (none / 0) (#16)
    by squeaky on Thu May 13, 2010 at 10:34:10 AM EST
    He did not grow up on the Upper West Side of Manhattan... lol

    Parent
    I'd like to see those memos. (none / 0) (#7)
    by Maryb2004 on Thu May 13, 2010 at 10:05:16 AM EST
    I don't want to rely on Politico's characterization them, I'd like to see what she said.

    I do have a concern about this because this is the type of issue where if she isn't strong she won't end up persuading Kennedy, she'll end up being persuaded.

    Me too (none / 0) (#9)
    by Big Tent Democrat on Thu May 13, 2010 at 10:06:11 AM EST
    I'm working on getting them.

    Parent
    BTD Thanks for posting (none / 0) (#27)
    by BackFromOhio on Thu May 13, 2010 at 07:09:19 PM EST
    I think we need to be reminded more often about our past, the significance of Brown v. Bd of Ed, and how far we've strayed.  As Stevens' own words point out -- at least to me --, in his comments on Roberts' opinion, the smarts of the Ivy League can be used to camouflage political opinions parading as claims of adherence to precedent.