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President Barack Obama’s choice for his second nominee to the U.S. Supreme Court—U.S. Solicitor General Elena Kagan—is a nonjudge without the record of dealing with education law issues typical of nominees who have served on federal appeals courts.
Most recently, as solicitor general, Ms. Kagan filed a brief this month with the Supreme Court defending the No Child Left Behind Act against teachers’-union objections that the law constitutes an unfunded federal mandate.
The nominee to succeed Justice John Paul Stevens, who will retire at age 90 at the end of the current term, also had education as part of her portfolio when she served as deputy director of the White House Domestic Policy Council from 1997 to 1999 under President Bill Clinton.
“She is very smart,” said Michael Cohen, the president of Achieve, a nonprofit education organization in Washington, who was an education policy aide to President Clinton during that time. “She did not pretend to be the education policy expert. But she asked thoughtful, probing questions about policy proposals that were under development.”
Mr. Cohen said that among the issues he recalls being handled, in small or large degree, by Ms. Kagan during that time were class-size reduction, single-sex classrooms, a California ballot measure that would limit bilingual education, and initial work on a reauthorization of the Elementary and Secondary Education Act.
“She wasn’t the person who said class size should be 18 students per teacher or 15 students,” said Mr. Cohen. “Her job was to ask, ‘How’s this going to work?’ She quickly got to the heart of these issues.”
Norma Cantu, who was the assistant secretary for civil rights in the U.S. Department of Education during the Clinton years, recalled communicating with Ms. Kagan about several questions on affirmative action and racial diversity in education during that era. Ms. Cantu, now a joint professor at the law school and the college of education at the University of Texas at Austin, said that some in the Clinton White House urged a cautious policy path on race-conscious actions, fearing that the Supreme Court was on the verge of outlawing consideration of race in education.
“But I didn’t have any of those problems with Elena,” said Ms. Cantu, who believed race-based action was permissible. “She understood it was the federal government’s role to enforce the law the way it was.”
In announcing his selection of Ms. Kagan on May 10, President Obama praised her as a “trailblazer,” a “superb” solicitor general, and “one of the nation’s foremost legal minds.”
“Someone as gifted as Elena could easily have settled into a comfortable life in a corporate-law practice,” the president said during an East Room ceremony. “Instead, she chose a life of service—service to her students, service to her country, service to the law, and to all those whose lives it shapes.”
Democrats in the U.S. Senate are hoping to hold confirmation hearings before July 4, although Republicans have yet to go along with that timetable. Mr. Obama hopes to have a confirmed nominee in place by the opening of the court next term, which begins in October.
Ms. Kagan is a former dean of the Harvard Law School who has championed nondiscrimination in education and improved access to college. If confirmed by the 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.
Family of Educators
During the White House event, Ms. Kagan said that her mother had been a “proud public school teacher” and that her mother and two brothers were “the kind of teachers students remember for the rest of their lives.”
Ms. Kagan’s mother, Gloria, taught 5th and 6th grade at Hunter College Elementary School in New York City. She died two years ago. Ms. Kagan’s brother Marc, a former transit worker and activist in the transport workers’ union in New York City, now teaches social studies at the Bronx High School of Science. Her brother Irving teaches the same subject at Hunter College High School.
Ms. Kagan, 50, is a native of New York. She attended Hunter College High, a selective public school for girls, and graduated from Princeton University in 1981 and Harvard Law School in 1986. She also received a degree from Oxford University in England.
Ms. Kagan clerked for Justice Thurgood Marshall on the high court during the 1987-88 term, in which the most significant education case was Hazelwood School District v. Kuhlmeier. In that case, the court held that school administrators had not violated the First Amendment rights of student journalists by ordering articles withheld from a high school newspaper. Justice Marshall joined a vigorous dissent written by Justice William J. Brennan Jr.
But another education case was the one that Justice Marshall “cared about most” during the term when Ms. Kagan clerked for him, she said in a 1993 tribute to him soon after his death.
In Kadrmas v. Dickenson Public Schools, the question was whether a North Dakota school district had violated the U.S. 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, Ms. 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,” Ms. Kagan wrote in the Texas Law Review article. The district should be upheld because it had a rational basis for charging all students the transportation fee, she told the justice.
To that, 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,” Ms. Kagan wrote. When a majority on the court voted to uphold the school district, Justice Marshall assigned Ms. 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.”
Ms. Kagan joined the University of Chicago law faculty in 1991. In 1995, she went to work in the Clinton administration, initially as an associate White House counsel. In 1997, she became deputy director of the Domestic Policy Council.
In 1999, Ms. Kagan joined the law faculty at Harvard, and she became the dean of the law school in 2003. She is credited with reducing longtime feuds among faculty members and recruiting conservative professors to broaden the school’s ideological perspectives.
Ms. Kagan has attracted attention for her handling of recruitment by the U.S. military at Harvard Law School. The federal “don’t ask, don’t tell” law that permits gays and lesbians 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 Ms. 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 the 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. Ms. 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 or violate the law school’s freedom of expressive association.
Conservatives and other critics of Ms. Kagan’s nomination have seized on the Harvard controversy, as well as on complaints that her record of scholarly writings is thin and that she is a product of elite liberal circles of thought.
“I assume she will be a reliable liberal vote,” said Gary L. Bauer, the president of American Values, a conservative Washington policy organization. “I see nothing in Barack Obama’s presidency where he would leave to chance where she is going to come out on cultural-values issues.”
Mr. Bauer, a former Republican presidential candidate and the Education Department’s undersecretary during the Reagan administration, said he was troubled by Ms. Kagan’s handling of the military-recruitment issue at Harvard. Though he acknowledged a lack of paper evidence, he said he assumes Ms. Kagan “falls into that category of liberal who believes that the First Amendment requires religion to be kept out of the public square, such as in a high school graduation speech.”
In the brief Ms. Kagan filed with the high court in the No Child Left Behind case, just days before President Obama introduced her as his nominee, she wrote that the law “seeks to improve the academic achievement of disadvantaged students through a combination of flexibility and accountability.”
The case, School District of the City of Pontiac v. Duncan (Case No. 09-852), stems from a challenge to the federal law organized by the National Education Association.
“The act expressly refrains from dictating funding levels, and instead grants states and [school districts] unprecedented flexibility to target federal dollars to meet state and local priorities,” Ms. Kagan said in the brief.
The solicitor general’s brief rejects, in forceful language, the union’s argument that the NCLB law illegally forces states and districts to spend their own money to comply with federal requirements.
“In enacting NCLB, Congress did not tell participating states and [districts] to administer Test X, or to spend Y dollars on testing,” Ms. Kagan wrote. “The act moves from a dollars-and-cents approach to education policy to a results-based approach that allows local schools to use substantial additional federal dollars as they see fit in tackling local educational challenges in return for meeting improved benchmarks.”
The case is awaiting a decision by the justices on whether they will grant review.
A version of this article appeared in the May 12, 2010 edition of Education Week as High Court Pick Has Sparce Education Policy Record