Witness Slams Kagan on K-12 Race Memos

By Mark Walsh — July 02, 2010 2 min read
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Elena Kagan advanced views in two cases involving the consideration of race in K-12 education that are “out of step” with color-blind principles and could lead to “racial engineering,” a witness told the Senate Judiciary Committee on Thursday.

Peter N. Kirsanow, a member of the U.S. Civil Rights Commission testifying for himself in Kagan’s U.S. Supreme Court confirmation hearings, said Kagan’s views in the two cases, combined with other evidence about her approach to civil rights, raise “serious questions about whether a Justice Kagan would sanction the use of race as a basis upon which to bestow benefits and burdens on Americans.”

(Kirsanow’s full statement is here.)

Kirsanow, one of several witnesses invited by Judiciary Committee Republicans to testify on the final day of the hearings, first discussed a view expressed by Kagan about the famous reverse-discrimination case involving the Piscataway, N.J., school district.

The case involved a district’s defense of its decision to lay off a white teacher rather than a black colleague for diversity reasons. As a senior White House domestic policy aide to President Bill Clinton, Kagan endorsed a 1997 legal memo that concluded the school district failed to justify its race-based decision.

“I think this is exactly the right position—as a legal matter, as a policy matter, and as a political matter,” Kagan wrote in the margins of the legal memo prepared by another administration lawyer.

“Ms. Kagan’s statement is prima facie evidence that she is a proponent of voluntary, non-remedial uses of race in the employment context,” Kirsanow told the Judiciary Committee.

Kirsanow’s second matter of concern involved a memo prepared by Kagan when she was a law clerk to Justice Thurgood Marshall in the late 1980’s. A lower court in 1987 had upheld a race-conscious student assignment plan in the Goose Creek Consolidated Independent School District in Texas. In a private memo to Marshall, Kagan recommended that the court not grant review and called the racial-balancing plan “amazingly sensible” and “fairminded.”

Such a view did not square with the Supreme Court’s rejection, two decades later, of two districts’ voluntary race-conscious student-assignment plans in Parents Involved in Community Schools v. Seattle School District, Kirsanow argued.

Also, Kagan’s comments about the Piscataway and Goose Creek cases are “probative of [her] willingness to permit highly suspect racial engineering to orchestrate a desired social outcome.”

Kagan’s comments in the two cases attracted notice before her confirmation hearings (I blogged here about her comments in the Piscataway case), but they gained no traction with members of the Judiciary Committee.

Kirsanow was one of 10 members of the final witness panel on Thursday evening, and none of the three or four members of the committee still present at that point asked any follow-up questions of him.

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