Charles Ogletree recently posted a passionate defense of Elena Kagan on The Root. Ogletree is a former professor of and an adviser to President Obama.
Several commentators have criticized Kagan's record on racial and gender diversity at Harvard, especially with regards to faculty hiring. I thank Ogletree for his letter, because it provides insight into Kagan's time at Harvard. I am very fond of Ogletree's work as a scholar, and I take his views quite seriously. For the reasons stated below, however, his letter does not answer all of the questions I have regarding Kagan's approach to civil rights.
Ogletree makes several points. He says that Kagan was supportive of hiring more women and persons of color at Harvard, and that she boosted the percentage of students of color at the school. She also took the Charles Hamilton Houston Chair, named after the famed civil rights attorney and rejected a chair named in honor of a slaveowner. He also argues that Thurgood Marshall, for whom Kagan clerked, spoke of her in glowing terms.
I have no reason to doubt Ogletree's personal observations. I am certain that Kagan, like all Deans, has expressed zealous support for faculty and student diversity. Here is why Ogletree's article does not alleviate all of the concerns I have.
First, nowhere in his essay does Ogletree argue that Harvard's numbers on faculty diversity are great (or even satisfactory). They are, in fact, abysmal. Critics are focusing on the numbers because they are so bad. Kagan's defenders should at least acknowledge this point.
Second, the battle over faculty diversity at Harvard and other law schools has a long history. Concerned students complain, protest, and criticize hiring. Deans form committees (as Kagan did) to seek bright and talented scholars of color. They say that they are doing their best. They may even make some offers, But the numbers are slow to change -- if at all.
Although I doubt that Ogletree intended this, his explanation sounds like the typical things that administrators tell students to explain poor records of diversity. Schools (and law firms) across the country routinely say that they are "committed" to diversity, regardless of their actual hiring records.
I remember my time at Yale Law School. The school had repeatedly given faculty offers almost exclusively to white men, turning down many bright and talented women. Students worked passionately on the issue, along with some faculty members, but the numbers remained the same.
Years later, things have changed tremendously at Yale. Two male deans substantially increased the number of women hired. During Harold Koh's time as Dean, 1/2 of the professors hired were women. These numbers are impressive for most schools (although at my school, all of the candidates hired last year were women, and no one blinked). Harvard and Yale compete for the same professors. Harvard, however, trailed Yale substantially in terms of faculty diversity.
Third, Kagan's decision to take the Houston chair is largely symbolic. Although it is a kind gesture, it cannot replace concrete change.
Fourth, Although Ogletree offers anecdotes from his own personal experiences with Kagan, many liberals want to hear her own views on civil rights issues and to see if she has a trail of accomplishment in this area. The fact that her scholarship and policy work do not reveal much information in this regard will keep the Harvard data in focus.
Other candidates on the Supreme Court shortlist (e.g., Pam Karlan) have long records of actual accomplishment regarding civil rights. If Kagan were in the same position, I believe that liberals would not feel as uncertain about her.
Finally, Ogletree does not discuss matters outside of Harvard that have come to light. For example, Politico reports that Kagan urged President Clinton to ease his effort to eliminate the unjustifiable sentencing disparity between crack and powder cocaine. Civil rights and criminal law scholars have long condemned the disparity on the grounds that it lacks a scientific basis and it produces a nasty racial disparity. Ogletree has devoted his life to solving problems of racism and class oppression in the criminal justice system. I wonder how he would respond to Kagan's work on this particular issue.