Kagan Supported Policy of Reverse Discrimination, Clinton Documents Revealed

By Jane McGrath | June 10, 2010 | 6:41 PM EDT

This April 2003 photo provided by Harvard University shows Elena Kagan, Harvard University law school dean. (AP Photo/Harvard University, Kathleen Dooher)

(CNSNews.com) – Supreme Court nominee Elena Kagan resolutely supported “non-remedial affirmative action,” also known as reverse discrimination, when she served in the Clinton Justice Department, according to a 1997 document buried in the more than 100,000 pages released from the Clinton Library last week.
The document -- a July 29, 1997 memo from then-Solicitor General Walter Dellinger to Attorney General Janet Reno -- stated that if the U.S. Supreme Court were to decide that Title VII of the 1964 Civil Rights Act “never permits non-remedial affirmative action… (s)uch a holding would be a disaster for civil rights in employment (emphasis in original.)”

Title VII bans discrimination on the basis of race in the workplace.

Kagan, in a handwritten note on the memo, wrote: “I think this is exactly the right position -- as a legal matter, as a policy matter, and as a political matter.”
Non-remedial affirmative action refers to the use of racial preferences in hiring to favor a “traditionally marginalized” group, but not for the purpose of attempting to remedy a specific problem caused by discrimination.
“I think this will be a very difficult case for (Kagan) to back off from in her confirmation hearings,” Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, told CNSNews.com.
The memo concerned a 1989 case in which the Piscataway (N.J.) Board of Education chose to eliminate the tenured teaching position of Sharon Taxman, a Caucasian woman, rather than Debra Williams, a Black woman, on the basis of race, under the district’s affirmative action policy. The women had equal seniority and the high school already had a diverse faculty.
The district court ruled against the board in favor of Taxman, who had filed suit on the basis that the board had discriminated against her in violation of Title VII. The U.S. Justice Department, under the George H.W. Bush administration, wieghed in on the case on Taxman's side. 
The federal judge, deciding that non-remedial affirmative action violates Title VII, forced the school district to rehire Taxman, as well as pay her lost wages, in addition to other payments.
When the board appealed this decision to the Third Circuit Court of Appeals, the Clinton administration’s brief in support of the Board was rejected, and the United States was permitted to withdraw as a party in the case. In 1996, the Third Circuit upheld the lower court decision -- again on the broad grounds that non-remedial affirmative action violates Title VII.
The Clinton administration, fearing that the U.S. Supreme Court would come to the same broad conclusion as the lower courts and serve a fatal blow to non-remedial affirmative action, argued against the Supreme Court from taking the case.
Justices, however, took the case in 1997, and the administrationwas reluctantly forced to take a position in the case.
“The question of what our brief should say is a sensitive one,” Dellinger, the government's top lawyer at the Supreme Court, wrote in the 1997 memo. After “consulting with representatives of major civil rights litigation groups,” Dellinger decided the best solution was actually to side with Taxman – however, only on the “narrow ground that the Board failed to offer or defend an adequate justification for this particular race-based layoff decision.”
By siding with Taxman on only these narrow grounds, the administration hoped to circumvent any question about the legality of non-remedial affirmative action.
Dellinger, trying to rationalize this position, wrote: “the use of race in layoffs generally imposes greater burdens than the use of race in hiring and promotion and therefore calls for a correspondingly greater justification.” And because the Board “failed to satisfy that burden,” he added, the lower courts were right to award money to Taxman.
Severino said the argument amounted to a political solution to a constitutional problem.
“Walter Dellinger’s solution, which Elena Kagan says she supported in no uncertain terms, really amounted to trying to hide the victim,” Severino said.
“(Dellinger) said, ‘We should encourage states to do this kind of thing through hiring practices rather than through firing,’” Severino explained. “Well, that’s really just two sides of the same coin – the only difference is that if you discriminate in hiring, it’s much harder to see where the victim is. When you discriminate through firing it’s very clear.”
For the question of constitutionality, Severino pointed to Justice Antonin Scalia’s concurring opinion in another major case on affirmatibve action, the 1995 Adarand case, where he wrote:
“Individuals who have been wronged by unlawful racial discrimination should be made whole, but, under our Constitution, there can be no such thing as either a creditor or a debtor race.”
Rather than a system “where one race is sort of racking up points against another,” said Severino, paraphrasing Justice Scalia, “the Constitution and our government should be treating us as one race where we really are equal in the eyes of the law.”
Asked whether Kagan’s support of Dellinger’s position was befitting a Supreme Court Justice, Severino replied, “I certainly think that if she thinks that thin a read is sufficient to save the serious constitutional problems with discrimination in that case, that doesn’t speak well of her judgment, no.”