Kagan Backed Religious Expression in Workplace

By Mark Walsh — June 14, 2010 2 min read
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U.S. Supreme Court nominee Elena Kagan aided an effort to provide federal guidance to clarify that there was “substantial room” for employees to discuss religion in the workplace, according to documents in the second batch of her papers released Friday by the Clinton Presidential Library.

An October 18, 1996, memo from Kagan when she was a deputy White House counsel suggests her support for efforts to develop a presidential executive order clarifying the extent to which the law permitted religious expression in the federal workplace.

“The order recognizes constraints on such expression, imposed by the government’s interests in workplace efficiency and the Establishment Clause’s prohibition on endorsement of religion,” Kagan wrote in the memo to various staff members of President Bill Clinton. “But the order tries to show (much as the guidelines on religion in the public schools tried to show) that within these constraints, there is substantial room for discussion of religious matters.”

Kagan has been nominated to succeed Justice John Paul Stevens on the U.S. Supreme Court. The memo provides fodder for weighing Kagan’s potential approach to disputes over religious expression in public education, both by employees and students.

Kagan’s mention of the public school guidelines refers to a 1995 statement about permissible religious expression in public education that was developed by a diverse group of religious and legal groups and was endorsed by then-U.S. Secretary of Education Richard W. Riley.

Some of the same groups--including the Christian Legal Society, Baptist Joint Committee, American Jewish Congress, and People for the American Way--were involved in coming up with the executive order on workplace religious expression. While the federal guidance officially applied only to federal offices, Kagan noted in her memo that “the religious groups hope that it will serve as a kind of model for private employers.”

Kagan notes in her memo that while the federal Office of Legal Counsel had approved the order for “form and legality, the Department of Justice as a whole is quite negative about the order.”

“DOJ believes the document conveys a tone that is too permissive of employee religious expression,” Kagan writes. Her memo indicated that a White House meeting was scheduled to try to hash out the differences. For discussion, Kagan circulated a then-recent decision by a federal appeals court striking down a policy of the California Department of Education restrictiing religious expression in the workplace.

In Tucker v. California Department of Education, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, struck down department policies barring religious advocacy and posting of religious materials by employees.

President Clinton did not issue the executive order until 1997, after Kagan had moved on from the White House counsel’s office to the job of deputy chief of the domestic policy office.

The first batch of Kagan’s papers from the Clinton White House showed how involved she was in a variety of education issues in the dometic policy job, as I discussed in this post. The Clinton Library plans one final release of Kagan papers before the Senate Judiciary Committee’s scheduled June 28 start to her confirmation hearings.

Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, said in a statement Friday that he was concerned that all of Kagan’s papers will not be produced in time for “a proper review” before the start of the confirmation hearings.

A version of this news article first appeared in The School Law Blog.