Are Harvard Law School Hiring Statistics Relevant to Elena Kagan's Nomination?

Last week, Salon.com ran a story regarding the low number of persons of color and women hired by Harvard Law School during Elena Kagan's tenure as Dean. Despite a surge in new hiring by the law school, only a few women and one person of color were hired as full-time faculty during Kagan's deanship. This essay argues that liberals and progressives should consider these statistics relevant to their analysis of Kagan's nomination.

Liberals and Progressives Have Long Considered Racial Diversity Valuable to Higher Education
Liberals and progressives have a long history of advocating racial diversity as an essential dimension of higher education.  The Supreme Court first recognized diversity in higher education as a "compelling" state interest in the 1978 ruling Regents of the University of California v. Bakke.  25 years later, it affirmed the importance of this interest in the ruling Grutter v. Bolinger, which involved a challenge to an affirmative action policy at the University of Michigan Law School. The Court embraced diversity as a necessary part of the educational process, and liberals offered tremendous praise for the ruling.

It is unclear whether the racial and sex statistics at Harvard Law School reflect a lack of commitment to diversity by Kagan.  If they do, then this should absolutely concern liberals and progressives. Because Kagan has never written about affirmative action or racial diversity in an extended fashion, the only way that the public can evaluate her commitment to diversity is to place this issue on the agenda during her confirmation hearings.

Liberals and Progressives Are Suspicious of Hiring Practices That Have a Disparate Impact Against Women and Persons of Color
In addition to praising diversity, liberals and progressives are suspicious of hiring practices that disparately affect women and persons of color. In the 1971 decision Griggs v. Duke Power Co., the Supreme Court held that federal employment discrimination law prohibited not only explicit policies that discriminate on the basis of race or sex, but also facially neutral practices that have a clear discriminatory effect. Even if the policies pursue a legitimate business purpose, Court doctrine allows plaintiffs to demonstrate the availability of a less discriminatory method of achieving the valid goal.

Decisions by the Rehnquist Court effectively nullified the impact standard, but in 1991, Congress made that rule an explicit part of federal law by amending the civil rights legislation. Today, the impact doctrine remains a part of antidiscrimination law -- although it is often extremely difficult to satisfy.

Liberals and progressives have fought to retain the impact standard.  In fact, they recently defended the standard during the confirmation hearings of Justice Sonia Sotomayor.

In Ricci v. DeStefano, Sotomayor was part of a 3-judge panel of the Second Circuit that upheld a decision by the New Haven fire department to withdraw a test used to allocate promotions. The test allocated all but one of the promotions to white employees. Experts testified that other testing methods could have produced a less discriminatory result.

The Second Circuit held that New Haven could withdraw the test because it was trying to avoid liability imposed by the disparate impact standard which liberals have fought to retain in federal antidiscrimination law. Conservatives made Ricci a centerpiece of Sotomayor's confirmation hearings, arguing that the ruling showed that she was biased against white plaintiffs.  Although the Supreme Court reversed the Second Circuit ruling on predictable 5-4 ideological grounds, liberals and progressives defended the Second Circuit ruling as a reasonable interpretation of Court doctrine.

The same factors that caused liberals and progressives to defend Sotomayor's ruling in Ricci, should lead them to question Harvard's hiring statistics.  Even if no particular plaintiff has a discrimination claim against Harvard Law School, statistical patterns of discrimination are meaningful to liberal and progressive politics. Accordingly, it is not unconscionable for liberals and progressives to ask Kagan about her commitment to diversity and to the enforcement of antidiscrimination law. In fact, such a line of inquiry is consistent with liberal and progressive politics and legal theory.

Excuses
Well meaning liberals have attempted to dismiss Harvard's hiring statistics by arguing that other schools have similar numbers.  This is a really bad argument. The fact that other schools have questionable records on race and sex does not excuse Harvard (or Kagan).

Others have pointed out that deans do not dictate hiring; thus, holding Kagan responsible is flawed. I agree that deans do not typically dictate hiring, but they influence the process. Indeed, many of Kagan's supporters praise her for helping to augment ideological diversity on the faculty by extending offers to conservative scholars. If Kagan can take credit for ideological diversity at Harvard, then she can also take blame for the lack of racial and sexual diversity.

Final Point: Consistency
CNN commentator Roland Martin argues that if liberals and progressives want to remain consistent, they should voice concerns regarding Harvard's hiring statistics. I agree.

During the confirmation process for Justice Samuel Alito, several Democrats questioned Alito about his membership in Concerned Alumni of Princeton, a group that opposed the school's efforts to increase enrollment of women and persons of color. Senator Edward Kennedy sought records of the organization, hoping to find information that would link Alito to race and sex discrimination. This effort proved fruitless.

If Democrats believed that Alito's membership in Concerned Alumni of Princeton could shed light on his view of race and sex discrimination, then hiring statistics during Kagan's tenure as Dean of Harvard are even more relevant. Kagan had much more influence on the hiring process at Harvard than Alito had on the admissions process at Princeton.

Justice Thomas: A Little Empathy Please!

Today, the Supreme Court ruled 8-1 that school officials in Safford, Arizona violated the constitutional rights of Savana Redding when they subjected her to a strip search. School officials, acting on a tip from another student, suspected that Savana (who was then 13-years-old) possessed a prescription equivalent of two Advil tablets. School policy prohibited students from possessing any prescription or over-the-counter medication without prior consent.

School officials first searched Savana's backpack, but they found no evidence of drugs. Next,

[They] asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt. . .which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.

Savana's mother sued the school district, arguing that the search violated Savana's Fourth Amendment right against "unreasonable searches and seizures." The Supreme Court agreed.

The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.

Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."

This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.

Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.

This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.

These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.

Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."

Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.

In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:

Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be. . . .

If this is true, then, given the flexibility of the relevant test, Thomas could (and should) have shown empathy for Savana. Instead, Thomas has written an opinion that trivializes individual liberty and defends the interests of school officials who were apparently so exercised over the possible presence of Ibuprofen at the school that they forced a young girl to display her breasts and pelvic area to gazing and searching adults.

Great News from Harvard Law School: Martha Minow Is the New Dean!

Harvard Law School has named Martha Minow, a highly accomplished and progressive scholar, as its new Dean. You can read the press release here.

So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects

Let me say upfront: I am a cynic. Accordingly, I never took the "change" mantra too seriously. But I certainly thought that after eight years of frenetic liberal criticism of the Bush administration, Obama would indeed offer some important differences. But even that tiny hope has been dashed. After the recent announcements that Obama would continue the practice of rendition and that the CIA would seek approval for "harsher" interrogations "if necessary," the small space I reserve in my heart for idealism and for surprisingly good decisions (or at least decisions that fulfill promises) by politicians has diminished substantially. But after today's news, the space has completely vanished.

What happened today? Elena Kagan, Dean of Harvard Law School and nominee for Solicitor General, announced that she believes that the government has the authority to detain indefinitely terrorism suspects because the country is "at war" with Al Qaeda. Because I am busy finishing edits on a law review article, can someone please explain to me how this differs from Bush's position, which liberals condemned, bashed and burned in effigy?

Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)