Except for fireworks on the military-recruiters-at-Harvard issue, the first day of questioning in the confirmation hearings for U.S. Supreme Court nominee Elena Kagan did not seem to be addressing education issues much.
Until the 10th and final hour of the marathon session, that is. That’s when Sen. Benjamin L. Cardin, D-Md., had several questions for Kagan based on education cases.
Cardin began by citing the dissent of Justice Thurgood Marshall in the 1988 Supreme Court case of Kadrmas v. Dickenson Public Schools. Kagan was a law clerk to Marshall that court term and has written that Kadrmas was the case from that term that Marshall “cared most about.”
The case concerned whether a North Dakota school district violated the Constitution’s equal-protection guarantee by refusing to waive a bus fee for a child from an indigent family who lived 16 miles from school. Kagan had told Marshall in a memo that it would be hard to rule for the school district, given that indigency was not a suspect legal class and education was not a fundamental federal constitutional right. As Kagan recalled in a tribute to her mentor, Marshall’s response was that Kagan was a “knucklehead” for thinking such thoughts.
“To Justice Marshall, the notion that government would act to deprive poor children of an education—of an opportunity to improve their status and better their lives—was anathema,” Kagan wrote in a 1993 article in the Texas Law Review. Marshall’s dissent in Kadrmas said the majority showed “a callous indifference to the realities of life for the poor” by refusing to require the district to waive the bus fee.
Cardin cited that Marshall dissent on Tuesday and asked Kagan how she believes the framers of the Constitution intended it to protect people from the abuses of government.
“Well, I think the Constitution is kind of a genius document,” Kagan said, noting that certain provisions are specific while others are general “to ensure the principles the framers’ held so dear would continue to apply throughout the ages.”
Cardin moved on to a case that he said “chipped away” at the high court’s landmark ruling in Brown v. Board of Education outlawing racial segregation in the schools. He quoted from the dissent of Justice Stephen G. Breyer in Parents Involved in Community Schools v. Seattle School District, a 2007 case in which the majority curtailed the ways schools could voluntarily take race into account in assigning students to schools.
Stating that the majority had threatened the promise of Brown, Breyer said Parents Involved “is a decision that the court and the nation will come to regret.”
Cardin turned to Kagan with a softer-worded question: Would she agree that a decision like Brown remains relevant today?
“Senator, I hope and I know that the principles of Brown v. Board are still relevant today,” Kagan replied."The idea of equality under law is a fundamental American constitutional value.”
That’s hardly a shocking statement. But in a hearing in which some Republicans have come close to attacking Thurgood Marshall as an activist justice, Kagan (and her allies on the committee) stand forcefully behind the legacy of the first African-American member of the court.
Earlier in the day, Kagan spoke about Justice Marshall in response to a question from Sen. Jon Kyl, R-Ariz., who in his opening statement on Monday had said that Marshall’s judicial philosophy “is not what I would consider to be mainstream.”
Kagan defended Marshall while making clear that it was she who would join the bench if confirmed.
“I love Justice Marshall,” Kagan told Sen. Kyl. “He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan. You won’t get Justice Marshall, and that’s an important thing.”
A version of this news article first appeared in The School Law Blog.