Kagan E-Mails Show Resolve on K-12 Issues

By Mark Walsh — June 21, 2010 4 min read
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In 1997, as President Bill Clinton’s administration was pursuing an initiative on voluntary national testing, a White House education aide suggested the possibility of a high school test to follow proposed 4th and 8th grade tests.

Elena Kagan, who was deputy director of the White House Domestic Policy Council at the time, reviewed the memo from the aide, Michael Cohen, which was intended for the president’s eyes.

“Do we really want to raise the prospect of a high school test?” Kagan wrote in an e-mail to Cohen on June 13, 1997. “I think with only six states in hand on our initial goal, people would ridicule such a call. ... In short, I am afraid this will make us look semi-oblivious.”

Cohen revised the memo along the lines suggested by Kagan, deleting the suggestion for a high school test. “I think the President would love a high school test, and I think it’s a good idea,” Cohen wrote back to Kagan. “However, I’ve always thought we had to have 4th and 8th grade testing pretty well along before we take on the 12th grade.”

The voluntary test idea eventually fizzled amid opposition in Congress. The e-mail from Kagan, now President Barack Obama’s nominee to succeed Justice John Paul Stevens on the U.S. Supreme Court, shows the political instincts she exhibited during her two years in the domestic policy job. (She also worked two years in the White House counsel’s office during the Clinton presidency.)

The Clinton Presidential Library in Little Rock, Ark., on June 18 released its final batch of Kagan records, including thousands of e-mails composed by her. (My blog items on the library’s two previous document releases are here and here.)

The e-mails show that Kagan was more of a traffic cop on domestic-policy proposals than a prolific writer advancing her own views. And she could be sharp-elbowed and acerbic.

In August 1997, some White House aides proposed that President Clinton use an upcoming event on World Literacy Day to highlight some evidently bland data on literacy rates. The proposal set Kagan off.

“We are in a fight for our lives on the testing initiative, with Congress likely to vote in early September to prohibit the use of federal funds for the test,” Kagan wrote in an e-mail to several White House staff members. “We cannot waste Sept. 8 on a sweetness-and-light literacy event.”

In 1998, Kagan responded to an e-mail discussion among White House staff members about a proposed presidential executive order on children, such as “on Indian children, Asian children, other minority children,” as one staff member put it.

“I confess to feeling somewhat baffled by this—an executive order on children saying what?” Kagan asked in a July 29, 1998, e-mail. “I have to say that I’d oppose an executive order on ‘children’s lives.’ We have many different initiatives that focus on children—we have education policies, child care policies, health policies, etc. We shouldn’t trivialize our work in this area by issuing an executive order telling everybody to [do] everything they can for every child.”

In 1997, Kagan offered White House speechwriters some advice for an upcoming address by President Clinton to the National Association for the Advancement of Colored People.

“In the transition to education, I would take explicit note of the NAACP’s proud history of fighting for educational opportunity and equality,” Kagan wrote in a July 15, 1997, e-mail. “That’s why it makes so much sense to talk about education to this group.”

Kagan’s critique continued. “I thought the education section wandered a bit,” she said, offering several suggestions. A few hours later, she sent the speechwriters another e-mail, titled “one last thing.”

“We probably should mention here that [civil rights pioneer] Rosa Parks is trying to start a charter school in Detroit,” Kagan wrote.

The last release of Kagan papers from the Clinton Library also sheds some light on a document from the first batch that drew attention. As noted by The New York Times in this story about the Kagan documents, Christopher Edley Jr., who was then a Harvard law professor and consultant to the Clinton administration, seemed to be upset with Kagan in 1998 over a proposed policy to end social promotions of pupils.

“I’ve heard rumblings about impending rollout of the ‘no social promotions’ education policy within the next few days,” Edley wrote in a Jan. 22, 1998, e-mail to several White House officials. “I have had no success contacting Elena to learn details or give feedback on this policy. I have tried email, voice mail, hallway greeting, and conversation with her secretary. I don’t feel that I have standing to call yet again and be a pest.”

Edley expressed concerns about ending social promotions, saying that researchers had shown that students who fall two years behind their age cohort in grade school had a high school dropout rate of as much as 98 percent. Edley even suggested he might need to resign over the policy, a tension highlighted in the Times article.

But the final batch of documents reveals two e-mails that shed further light on the episode. The first was a “clarification” sent by Edley to the same group as his first e-mail, with Kagan sent an electronic carbon copy.

“I don’t mean to be critical of Elena,” Edley wrote. “I know she’s got many more important things to do than yack with an interloping schmoozer. Life is complicated.”

Kagan sent a response to that message to the White House aides to whom Edley had sent his e-mails, and she seemed to take Edley’s messages in stride.

“I’ll call him,” Kagan wrote. “He’s right that I owe him a call.”

Kagan’s confirmation hearing before the Senate Judiciary Committee is scheduled to begin June 28.

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