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Marshall: Kagan a ‘Knucklehead’ on School Case

By Mark Walsh — May 13, 2010 2 min read
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U.S. Supreme Court nominee Elena Kagan has written that the one case that Justice Thurgood Marshall “cared about most” during the term she clerked for him was Kadrmas v. Dickinson Public Schools.

In that 1988 case, the question was 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.

In their internal discussions over the case, Kagan told Justice Marshall that she thought it would be difficult for the court to rule for the family. “After all, I said, indigency was not a suspect class; education was not a fundamental right,” Kagan wrote in a 1993 tribute to Marshall in the Texas Law Review. The district should be upheld because it had a rational basis for charging all students the transportation fee, she told the justice.

To this, Justice Marshall responded that she was a “knucklehead,” an appellation he sometimes used with his clerks.

“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.

Five justices on the court voted to uphold the school district, with Justice Sandra Day O’Connor eventually writing a majority opinion that aligned with Kagan’s initial view of the case. Marshall assigned Kagan to write a draft dissent. But he returned several drafts to her because they failed to express the justice’s views “in a properly pungent tone,” as she put it in the tribute.

In his final, published dissent in Kadrmas, Justice Marshall said the majority showed “a callous indifference to the realities of life for the poor.”

“For the poor, education is often the only route by which to become full participants in our society, In allowing a State to burden the access of poor persons to an education, the Court denies equal opportunity and discourages hope. I do not believe the Equal Protection Clause countenances such a result. I therefore dissent,” Marshall wrote in the dissent, joined by Justice William J. Brennan Jr. (Justices John Paul Stevens and Harry A. Blackmun dissented separately.).

Kagan, in the Texas Law Review tribute, concluded that in Justice Marshall’s view, “constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government--to safeguard the interests of people who had no other champion.”

(Hat Tip to Charlie Savage in today’s New York Times, whose story on Kagan’s year clerking for Marshall leads with the anecdote from the Kadrmas case.)

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