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Published in Print: June 16, 2010, as Papers Hint at High Court Nominee's Policy Thinking

Papers Hint at High Court Nominee's Policy Thinking

When she served as a domestic-policy adviser to President Bill Clinton, U.S. Supreme Court nominee Elena Kagan sometimes weighed in on education issues.
When she served as a domestic-policy adviser to President Bill Clinton, U.S. Supreme Court nominee Elena Kagan sometimes weighed in on education issues.
—Tim Sloan/AFP/Getty Images
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U.S. Supreme Court nominee Elena Kagan was immersed in a broad array of K-12 education policy initiatives during her two years as a White House aide to President Bill Clinton, papers released this month show.

Though the first batch of Ms. Kagan’s papers released by the Clinton Presidential Library in Little Rock, Ark., reveals little of the nominee’s own views on such issues as education funding, testing, social promotion, and school violence, her handwritten notations on policy memos by other aides give glimpses of her thinking on a few issues.

The papers consist mostly of physical files Ms. Kagan kept of memos, e-mails, and background documents sent to her when she served as deputy director of the White House Domestic Policy Council from 1997 to 1999. Other documents, including her own e-mails and memos, are expected to be released before the Senate Judiciary Committee later this month takes up her nomination to succeed Justice John Paul Stevens on the high court.

Rachel Brand, who served as a White House aide to President George W. Bush and helped shepherd the nominations of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., said at a roundtable discussion on the Kagan nomination last week that because Ms. Kagan has not been a judge, her policy advice from the Clinton years will likely come under close scrutiny from the Judiciary Committee.

“When she was at the Domestic Policy Council, presumably she would be expressing her own views,” said Ms. Brand, now a lawyer in private practice in Washington and who spoke at the event sponsored by the American Constitution Society, a liberal-leaning legal group. “But when you’re a staffer at the DPC, you don’t just kick your feet back and think big thoughts. You are advising the president on his agenda.”

One of Ms. Kagan’s notes appears on a memo from 1997, when the Clinton administration was wrestling with a thorny affirmative action case. The Piscataway, N.J., school board was defending its decision to lay off a white teacher over a black colleague with equal seniority and similar qualifications to maintain racial diversity among the faculty of the business education department of the district’s lone high school.

In the memo, written to the attorney general and President Clinton and dated July 29, Walter Dellinger, who was the acting U.S. solicitor general, explained why he believed the administration should file a brief in the Supreme Court in support of the white teacher’s reverse-discrimination claim “on the narrow ground that the board failed to offer or defend an adequate justification for the particular race-based layoff decision.”

Mr. Dellinger also predicted that the Supreme Court, which had accepted the case for review, would likely use the case to rule broadly that Title VII of the Civil Rights Act of 1964 never permits nonremedial affirmative action. “Such a ruling would be a disaster for civil rights in employment,” he wrote.

In the margin of the memo, Ms. Kagan penned a note to her boss, White House domestic-policy chief Bruce Reed, that said, “I think this is exactly the right position—as a legal matter, as a policy matter, and as a political matter.”

Mr. Dellinger said last week that he was surprised to see his memo made public by the Clinton Library, and also surprised it had crossed Ms. Kagan’s desk in the domestic-policy office.

“I wrote that for the president on a highly sensitive issue,” Mr. Dellinger said at the American Constitution Society roundtable.

Mr. Dellinger, now a visiting professor at Harvard Law School and a frequent private litigator before the justices, is a solid supporter of Ms. Kagan’s nomination. He said after the roundtable that her handwritten remark on his Piscataway memo suggests she could be in the mold of retired Justice Sandra Day O’Connor on issues of race and affirmative action. Justice O’Connor was often skeptical of race-based government action, but cast key votes in favor of permitting colleges to take race into account as one factor in admissions.

As it turned out, the case known as Piscataway Township Board of Education v. Taxman never reached oral arguments before the high court. Civil rights groups came up with money to allow the school board to settle the case with the white teacher and avoid the potential “disaster” predicted in the Dellinger memo.

‘Education Strategy’

What is clear from the hundreds of pages of documents is that the Clinton domestic-policy office was deeply involved in education issues, often coordinating with the Department of Education. Clinton aides viewed education initiatives—whether ambitious, such as an effort to reauthorize the Elementary and Secondary Education Act, or modest, such as a proposal to promote school uniforms—as something that connected with voters, put Republicans on the defensive, and would help cement the president’s legacy.

A 1998 memo from various White House aides to President Clinton proposed an “education strategy” that covered a raft of ideas, but also suggested emphasizing the ones that had the best chance of passage, such as an expansion of the federal charter school program. The memo also suggested some issues that were worth picking fights with Republicans over, such as class-size reduction and national standards and testing.

In the margin of the strategy memo, Ms. Kagan wrote to Michael Cohen, a Clinton aide who specialized in education policy: “Mike—Could you put in a set of scheduling requests corresponding to the suggestions in this memo? ASAP of course. Elena.”

The White House sometimes got involved in state issues, such as a 1998 ballot initiative in California that aimed to limit bilingual education in the state’s public schools, known as Proposition 227, or the Unz Amendment, for its sponsor, businessman Ron Unz.

“As you know, Bruce and Elena are still hoping we can come up with a consensus position on our Unz recommendations to the President,” Mr. Cohen said in an April 7, 1998, memo to various White House policy aides. The memo suggests there was wide disagreement on what position Mr. Clinton should take on bilingual education, with Mr. Reed and Ms. Kagan favoring a principle that students with limited English proficiency be required to learn English within three years, while others favored softer or stricter approaches.

The ballot initiative, which passed overwhelmingly, generally limits students with limited English skills to no more than a year of special English classes.

Also in 1998, the administration was working with the New York City public schools on ways in which an all-girls school in East Harlem called the Young Women’s Leadership School could be justified under court rulings that made publicly funded single-sex programs legally suspect.

Then-Schools Chancellor Rudy F. Crew was, according to memos in Ms. Kagan’s files, resistant to federal pressure to open a boys-only program similar to the girls-only leadership school. In a notation on a memo about the case, Ms. Kagan wrote to Mr. Cohen: “Whether the lawyers like it or not, the all-boys approach will get us into real trouble with our women’s groups friends—at a time when we’re likely to need them. This is especially so if they know that we’ve pushed NYC toward this approach. Tell your friends at Education that finding a remedial justification would be much better—and that they shouldn’t press the all-boys school too hard.—Elena”

The Judiciary Committee is scheduled to begin hearings on Ms. Kagan’s nomination on June 28.

Vol. 29, Issue 35, Pages 22,29

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