Papers Show Kagan in Loop on Clinton K-12 Policy

By Mark Walsh — June 06, 2010 5 min read
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U.S. Supreme Court nominee Elena Kagan was immersed in a broad array of K-12 education policy initiatives during her years as a White House aide to President Bill Clinton.

However, the first batch of Kagan’s papers released by the Clinton Presidential Library in Little Rock, Ark., reveals little of the nominee’s own views on such issues as education funding, testing, social promotion, and school violence. The files released Friday consist mostly of physical files Kagan kept of memos, e-mails, and background documents sent to her, rather than her own e-mails and memos. Those are expected to be released in the coming weeks.

There were a few issues, though, in which Kagan, who served as deputy director of the White House Domestic Policy Council from 1997 to 1999, expressed her own views in handwritten notations on policy memos.

In 1997, for example, the Clinton administration wrestled with an infamously thorny affirmative action case. The Piscataway, N.J., school board was defending its decision to lay off a white teacher over a black colleague with equal seniority and similar qualifications to maintain racial diversity among the faculty of the business education department of the district’s lone high school.

In a July 29, 1997, memo, then-U.S. Solicitor General Walter Dellinger explained why he believed the administration should file a brief in the U.S. Supreme Court in support of the white teacher’s reverse-discrimination claim “on the narrow ground that the board failed to offer or defend an adequate justification for the particular race-based layoff decision.” Dellinger also predicted that the Supreme Court, which had accepted the case for review, would likely rule that Title VII of the Civil Rights Act of 1964 never permits nonremedial affirmative action. “Such a ruling would be a disaster for civil rights in employment,” Dellinger wrote.

In the margin of the memo, Kagan penned a note to her boss, White House domestic-policy adviser Bruce Reed, that said, “I think this is exactly the right position—as a legal matter, as a policy matter, and as a political matter.”

Before the Supreme Court heard arguments in the case, known as Piscataway Township Board of Education v. Taxman, civil rights groups came up with money to allow the school board to settle the case with the white teacher.

In another Supreme Court case, the administration weighed whether to support the appeal of a lower-court ruling that struck down, as a violation of the First Amendment’s prohibition of a government establishment of religion, a provision of the Elementary and Secondary Education Act that authorized school districts to lend computers, software, and library books to private schools, including religious schools.

In the margin of a memo outlining the issues in the case, Kagan wrote: “Bruce, I think the President would wish to file in this case. Agree? Elena.” Then, she added a second notation: "(Also, I think he would want the SG [solicitor general] to make the case for overruling—not just distinguishing Meek and Wolman.)

That was a reference to two Supreme Court decisions from the 1970s—Meek v. Pittenger and Wolman v. Walter—that dealt with various forms of government aid to nonpublic schools. Ultimately, the Clinton administration did not appeal the ruling itself, but it supported the aid programs when intervening parties brought the case to the high court. In Mitchell v. Helms, the Supreme Court in 2000 upheld the aid to nonpublic schools, and the majority partially overruled Meek and Wolman.

What is clear from the hundreds of pages of documents is that the White House domestic-policy office was deeply involved in education issues, often coordinating with the Department of Education. Clinton aides viewed education initiatives—whether ambitious, such as an effort to reauthorize the ESEA, or modest, such as a proposal to promote school uniforms—as something that connected with voters, put Republicans on the defensive, and helped cement the president’s legacy.

A 1998 memo from Reed, White House education aide Michael Cohen, and two other aides to President Clinton proposed an “education strategy” that covered a raft of ideas, but also suggested emphasizing the ones that had the best chance of passage, such as an expansion of the federal charter schools program and education technology initiatives. The memo also suggested some issues that were worth picking fights with Republicans over, such as class-size reduction and national standards and testing.

In a handwritten note to Cohen, in the margins of the strategy memo, Kagan asked, “Could you put in a set of scheduling requests corresponding to the suggestions in this memo? ASAP of course. Elena.”

The White House sometimes got involved in state issues, such as a 1998 ballot initiative in California that limited bilingual education in the state’s public schools. The measure was known as Proposition 227, or as the Unz Amendment, for its sponsor, businessman Ron Unz.

“As you know, Bruce and Elena are still hoping we can come up with a consensus position on our Unz recommendations to the President,” Cohen said in an April 7, 1998, memo to various White House policy aides. The memo suggests there was wide disagreement on what position Clinton should take on bilingual education, with Reed and Kagan favoring a principle that students with limited English proficiency be required to learn English within three years, while others favored softer or stricter approaches.

The White House debate was largely irrelevant to the ballot initiative, which passed overwhelmingly and generally limits students with limited English skills to no more than a year of special English classes.

In 1998, the administration was working with the New York City public schools on ways in which an all-girls school in East Harlem called the Young Women’s Leadership School could be justified under court rulings that made publicly funded single-sex programs for only one gender legally suspect.

Then-New York City Schools Chancellor Rudy Crew was, according to memos in Kagan’s files, resistant to federal pressure to open a boys-only program similar to the girls-only leadership school. Another approach being pushed by federal officials was for New York to come up with a remedial justification for the girls-only school.

In a notation on a memo about the “single sex schools case,” Kagan wrote to Cohen: “Whether the lawyers like it or not, the all-boys approach will get us into real trouble with our women’s groups friends—at a time when we’re likely to need them. This is especially so if they know that we’ve pushed NYC toward this approach. Tell your friends at Education that finding a remedial justification would be much better —and that they shouldn’t press the all-boys school too hard. —Elena”

Presumably, Kagan had more to say about education policy in the White House job than just these notes scribbled in the margins. It will be interesting to see what her own e-mails and memos have to say about these issues.

The Senate Judiciary Committee is scheduled to begin hearings June 28 on Kagan’s nomination to succeed Justice John Paul Stevens.

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