ELENA KAGAN

A Strong Commitment to Civil Rights and Equal Justice Under Law

Elena Kagan has demonstrated a commitment to civil rights and equal justice under the law
throughout her career. As a law clerk, Kagan clerked for Justice Thurgood Marshall, whom
Kagan considers a hero and mentor. As a White House aide, Kagan worked on issues such as
strengthening hate crimes legislation and civil rights enforcement. As a law school Dean, she
worked to ensure a diverse student body and faculty. And as Solicitor General, Kagan has
vigorously defended the nation’s civil rights laws.

Solicitor General – Defending the Nation’s Commitment to Civil Rights

 Recently, Kagan authorized the filing of an amicus brief by the Department of Justice and
the Department of Education in a Fifth Circuit case, Fisher v. University of Texas. The
brief defends the constitutionality of the University of Texas’ affirmative action program.

 In Lewis v. City of Chicago, Kagan filed a brief supporting African American firefighters
(represented by John Payton and the NAACP Legal Defense Fund), who challenged a
hiring test used by the City of Chicago under Title VII of the Civil Rights Act.

Harvard Law School – Commitment to Diversity as Dean

Charles Hamilton Houston Chair

 John Payton, Charles Ogletree, and others have taken note of one of Kagan’s first acts as
Dean. As Professor Ron Sullivan recently wrote:
o “The tradition at the Harvard Law School is that the Dean takes the Royall
Professorship of Law, which is the law school’s first endowed chair. The chair is
named after Isaac Royall Jr., who donated over 2100 acres of land to Harvard in
the mid-eighteenth century. But, the Royall family earned its immense fortune
from the trans-Atlantic slave trade. When Kagan was named Dean of the law
school, she broke with tradition and declined to accept this professorship.
Instead, she became the first person to hold the Charles Hamilton Houston
professorship, an endowed chair named after one of the most prominent African-
American graduates of the Harvard Law School, and the architect of the modern
civil rights movement. This was a significant statement made by the Dean of the
one of the nation’s top law schools.”

Students
 Admitting and recruiting diverse classes of students was a priority for Kagan, and during
her deanship, the school increased its enrollment of minority students.

 As Professor Charles Ogletree recently noted: “Since Elena Kagan became dean, the
number of African American students admitted, particularly black males (given the
national decline in African American males in colleges and universities), is simply
astonishing. From 2003 until she ended her deanship in 2009, the number of African
American students has been at an all time high.”

 
 

 For the six years Kagan was dean, the percentage of African-Americans in the entering
class was 11.6%, while in the previous six years it was 9.3%. During this time, the
average number of black men enrolled in the entering class was 28 and the average
number of black women was 37, compared with 19 and 33, respectively, before Kagan’s
deanship.

 Additionally, during Kagan’s deanship, the percentage of Hispanics in the entering class
was 6.4%, while it had been 4.6% prior to her becoming dean. The average number of
Hispanic men in the entering class was 20, compared to 14 in the previous six years. The
average number of Hispanic women in the entering class was 19, compared to with 12
before Kagan’s deanship.

 At the school’s Celebration of Black Alumni in 2005, prominent defense attorney Ted
Wells and other alums praised Kagan for the record number of African American
students that had enrolled that year.

 Beyond the numbers, faculty and students have highlighted Kagan’s commitment to
making minority students (and their parents) feel welcome at the school at events, her
participation in activities by minority student organizations, and her support for clinical
programs and research institutes devoted to issues of racial justice.

Faculty
 As Dean, Kagan made a strong effort to promote diversity in the Harvard Law School
faculty.

 Harvard Law School hires professors in three ways. First, HLS hires individuals from
the entry-level job market. Second, HLS hires individuals who already teach at other
schools; those individuals are extended “visiting offers” and spend time as a visitor for a
period such as a semester or a year. Kagan herself first joined the faculty at HLS as a
visiting law professor, before she went on to earn tenure and become Dean. Third, HLS
hires clinical professors, who provide students with important real-world experience,
often in public interest.

 Kagan’s efforts at hiring more women included charging a committee to review the work
of 31 top women scholars. 15 of them visited, and 2 were given offers and joined the
faculty. On average, 30% of the visiting professor offers each year went to women.
During Kagan’s deanship, 4 women were hired from the entry-level job market, and 3
others joined the faculty from other schools. An additional 9 offers were extended to
women, and 2 remain open today.

 During Kagan’s deanship, one faculty member of color was hired from the entry-level job
market and an offer was extended to a woman of color. One faculty member of color
visited from another school and was extended an offer. Additionally, 2 faculty members
of color were promoted during her tenure as dean.

 
 

 Although the numbers are not as strong as she would have liked, the school did make
some important progress. Kagan supported hiring a number of minority and women
candidates. Additionally, under her tenure, Harvard Law School hired the school’s first
Asian-American female tenure-track professor and an African-American male was
promoted to full-tenure. Additionally, Kagan oversaw the hiring of a number of clinical
professors and visiting professors of color.

 Not content with the numbers on campus, Kagan helped worked to increase the pool of
minority candidates in the pipeline for tenure-track positions. According to Professor
Kennedy, Kagan:

o “was also attuned to the ways in which systemic social inequities, reinforced by
inertia, have slowed or even stymied the movement of racial minorities into legal
academia. Aware of this problem, she sought to increase the pool of minority
candidates available for serious consideration for faculty positions at the nation's
law schools. Her attentiveness to this issue was manifested in at least two
important ways. One was her active and enthusiastic support for the Charles
Hamilton Houston and Reginald Lewis Fellowship Programs at Harvard which
have served as the launching pads for numbers of highly successful racial
minority legal academics. Another was her assistance in forming an ad hoc
committee (on which I sat) that sought to identify promising racial minority
candidates, several of whom have already visited at Harvard Law School and
several of whom are slated to visit soon.”

 During her deanship, Kagan substantially expanded the clinical teaching program at HLS.
Due to this expansion, thousands of indigent and under-represented citizens received
quality legal services that they otherwise would have been able to afford.

 Kagan also hired Professor Ronald Sullivan, persuading him to leave his professorship at
Yale Law School. Kagan named Sullivan Director of the prestigious Harvard Criminal
Justice Institute, the nation’s preeminent teaching and research institute on criminal law,
and Director of Harvard’s Trial Advocacy Workshop, a nationally-known teaching
program that brings in some of the country’s top lawyers and judges to train Harvard law
students during an intensive three week trial skills workshop. Sullivan teaches a clinic
where students represent indigent clients, mostly African American and Latino, who are
charged with criminal violations.
 
 Sullivan, a former head of the D.C. Public Defender Service and scholar of the
intersection of race and the law, stated that Kagan “provided consistent, strong, and
material support for my clinic and research. She showed a genuine appreciation and
concern for my clinical programs goal of ensuring that indigent citizens receive
constitutionally adequate representation.”   

A Commitment from an Early Age

 Kagan had an early interest in the intersection of Race and the Law. As Harvard Law
School Professor Randy Kennedy recently explained: “She was in one of the first

 
 

classes on race relations law that I taught at Harvard Law school. I recall vividly that she
was an outstanding student -- so much so that I recommended her with superlatives to my
former boss Justice Thurgood Marshall. I thought that she would be an excellent clerk for
him partly because she was so able analytically and also because her quiet but passionate
commitment to equality before the law would fit in so well with ‘Mr. Civil Rights.’ I was
delighted when Justice Marshall offered her the clerkship and was unsurprised later when
the Justice told me that her work for him had been exemplary. She took.”

 After law school, Kagan clerked for Judge Abner Mikva on the D.C. Circuit and for
Justice Thurgood Marshall during the Supreme Court’s 1987 Term. Kagan has spoken
(and written) at length about her admiration for Justice Marshall, whom she calls the “the
most important” and “greatest lawyer of the 20th Century.”