Kagan Tapped for Supreme Court

By Mark Walsh — May 10, 2010 5 min read
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UPDATED 10:30 A.M.

President Barack Obama introduced Elena Kagan this morning as his nominee for the U.S. Supreme Court, lauding her as someone who understands that “behind the law there are stories” of individuals.

Kagan, the U.S. solicitor general since last year, is a former dean of the Harvard Law School who has championed nondiscrimination in education and improving access to college. If confirmed by the U.S. Senate, she would be the first nonjudge to join the high court since Lewis F. Powell Jr. and William H. Rehnquist became associate justices in 1972.

President Obama called Kagan a “superb” solicitor general and someone who chose to devote her life to public service rather than corporate law firms. Noting that Kagan’s parents were deceased, the president said, “I"m sure they would be proud of their daughter--a great lawyer, a great teacher.”

Kagan noted that her mother was “the kind of teacher students remember for the rest of their lives.” The New York Times reports today that her mother, Gloria, taught 5th and 6th grade at Hunter College Elementary School. She died two years ago. Kagan’s two brothers are also teachers. Marc teaches social studies at the Bronx High School of Science, while Irving teaches the same subject at Hunter College High. Both were present at the White House for today’s announcement.

Kagan does not have the kind of record of dealing with education law issues that many federal appeals court judges typically do. In particular, two judges on President Obama’s short list--Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit, in Chicago, and Sidney R. Thomas, of the U.S. Court of Appeals for the 9th Circuit, in San Francisco--have decided a number of hot-button school law issues. (Not so much for the fourth member of the short list--Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.)

Kagan, 50, would succeed Justice John Paul Stevens, who is retiring at age 90 at the end of the current term. A native of New York City, she attended Hunter College High School, a selective public high school for girls, before graduating from Princeton University in 1981 and Harvard Law School in 1986. She also received a degree from Oxford University in England.

Kagan clerked for Justice Thurgood Marshall on the high court during the 1987-88 term, one in which the most significant education case was Hazelwood School District v. Kuhlmeier. In that case, the court held that school administrators did not violate the First Amendment rights of student journalists when they ordered articles withheld from a high school newspaper. Justice Marshall joined a vigorous dissent written by Justice William J. Brennan Jr.

Kagan joined the University of Chicago law faculty in 1991. In 1995, she joined President Bill Clinton’s administration, initially as an associate White House counsel, and in 1997 she became deputy director of the White House Domestic Policy Council. “In the DPC, I played a role in the formulation, advocacy, and implementation of law and policy in areas ranging from education to crime to public health,” Kagan said last year in her Senate Judiciary Committee questionnaire for her nomination as solicitor general.

In 1999, Kagan joined the faculty of Harvard Law School, and she became dean in 2003. She is credited with reducing longtime feuds among faculty members and recruiting conservative professors to broaden the school’s ideological perspectives.

In a letter to the Judiciary Committee last year, John Payton, the president and director-counsel of the NAACP Legal Defense and Educational Fund, noted that Kagan decided upon becoming Harvard law dean to also take the title of Charles Hamilton Houston professor of law. Houston was a dean of the historically black Howard University’s law school in Washington from 1929 to 1935 and was a mentor to Thurgood Marshall in the fight to end segregation in education.

Kagan’s decision to take the chair named for Houston had “enormous symbolic value but also, more significantly, reflects the real content of her character,” Payton said in his letter. “She combines intellectual depth with curiosity and dynamism.”

Kagan has attracted attention for her handling of recruiting by the U.S. military at Harvard Law School. The federal “don’t ask, don’t tell” law that permits homosexuals to serve in the military only if they keep their sexual orientation private was challenged by a group of law schools and law faculty members. Harvard Law was not part of the group, but Kagan joined other Harvard Law faculty members in signing a friend-of-the-court brief in the Supreme Court opposing the policy.

Earlier, in keeping with a federal law known as the Solomon Amendment, the federal government threatened to withhold all funding from Harvard University when the law school briefly prohibited military recruiters. Kagan rescinded the prohibition, writing to students: “I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military’s discriminatory employment policy is deeply wrong--both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

In 2006, the Supreme Court ruled 8-0 in Rumsfeld v. Forum for Academic and Institutional Rights that the Solomon Amendment did not place an unconstitutional condition on the receipt of federal funds and did not violate the law schools’ freedom of expressive association.

A couple of other items on Kagan’s resume bear mentioning with respect to education. When she was nominated to be solicitor general last year, Kagan was a member of the board of directors of the Advantage Testing Foundation, the public service arm of a New York City-based tutoring and test-preparation organization founded by a Princeton alumnus, Arun Alagappan.

In 2007-09, Kagan was one of 30 members of the New York State Higher Education Commission, which studied and made recommendations about the state’s public colleges and universities.

Check back with The School Law Blog and for more on the Supreme Court selection later today.

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