Kagan’s Potential Impact on the African-American Community

Is Solicitor General Elena Kagan’s record on diversity likely to affect her position on affirmative action and other diversity issues that affect the African-American community?  I contend that it is way too early to speculate but it definitely is an issue that will resonate with African-Americans.  Although she has been noted for being a consensus builder, her record for diverse hires while serving as the Dean at Harvard Law School is concerning.  During her six-year tenure as Dean, Kagan had an abysmal record on recruiting and hiring minority professors.  Her records indicate that there were 29-new hires (23 white men, five white women and one Asian American woman).  However, not one black or Latino professor was employed.  

Considering her predecessor, Justice John Paul Stevens, is a supporter of affirmative action (he voted to uphold the affirmative action program at the University of Michigan Law School challenged in 2003’s Grutter v. Bollinger), Kagan’s lack of diverse hires and the uncertainty that provides is concerning.  However, it must be noted that many factors are examined when making hiring decisions, especially at an educational institution of the caliber of Harvard Law School.  Therefore, it would be premature to suggest that diversity and diversity initiatives are not of importance to Kagan.  Mention must also be made to the fact that Kagan clerked for Supreme Court Justice and civil rights patriarch Thurgood Marshall.  As many of us know, Marshall served as chief counsel for the NAACP for many years (he argued the landmark Brown v. Board of Education case) and fought for inclusion and integration.  I would be hard pressed to believe that Kagan, who maintains that Marshall was her hero and who she credits with providing her with a greater understanding of the law, would not be supportive of diversity initiatives and policies. 

Although it is common for speculation to run wild during this period leading up to confirmation, I would caution people to not draw conclusions from her bleak record on diversity while serving as Dean and assume that is reflective of her position with respect to diversity policies.