Guy-Uriel Charles , Anupam Chander, Luis Fuentes-Rohwer, and Angela Onwuachi-Willig: The White House's Kagan Talking Points are Wrong
Like everyone in the legal academy over the last decade, we have watched with admiration the amazing changes that Elena Kagan brought to Harvard Law School. A fractured faculty, divided among ideological lines, seemed finally content, if not united. A boisterous student body was finally pacified. The logjam that had stopped faculty hiring had burst. Indeed, she hired so many new faculty the Harvard Law School’s newspaper’s 2008 April Fool’s issue declared, "Dean Kagan Hires Every Law Professor in the Country."
The first woman Dean of Harvard Law School had presided over an unprecedented expansion of the faculty -- growing it by almost a half. She had hired 32 tenured and tenure-track academic faculty members (non-clinical, non-practice). But when we sat down to review the actual record, we were frankly shocked. Not only were there shockingly few people of color, there were very few women. Where were the people of color? Where were the women? Of these 32 tenured and tenure-track academic hires, only one was a minority. Of these 32, only seven were women. All this in the 21st Century.
One of us aired some of these concerns, which we expressed in a joint letter to the White House, on a blog. The White House never responded directly to us, but it did provide a defense of the Solicitor General’s record to concerned civil rights groups, who then made the document public. (Salon obtained a copy, which can be found here.) We are glad that the White House has responded to some of the questions that we have raised.
Unfortunately, the White House’s defense of the solicitor general’s hiring record while she was Dean at Harvard is surprisingly weak.
To begin, and most notably, the White House does not dispute our basic facts. When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century.
These are the facts that the White House does not try to defend because these facts are indefensible. For those who think that more women and minorities qualified to serve on the Harvard Law faculty were simply nonexistent, one need only look at Harvard’s primary rival--Yale Law School. There Dean Harold Koh led the law school during almost the same period (Dean Koh, from 2004 to 2009, and Dean Kagan, from 2003 to 2009). Dean Koh hired far fewer faculty members--just ten--but he still managed to hire nearly as many women (5 of 10 at 50 percent), and just as many minorities (1 of 10 at 10 percent) as Dean Kagan....
Who but ivory tower types care who teaches at Harvard Law School? Whether deserved or not, the reality is that the nation’s elected officials and business leaders often call upon Harvard’s law faculty. Indeed, many serve in the Obama Administration, as exemplified by Solicitor General Kagan herself. Equally important, its faculty serve as role models for generations of future leaders -- the future Barack Obama’s of the world. Today, President Obama continues to recognize the importance of having an administration, federal judiciary, and indeed a Supreme Court that reflects the diversity of Americans. Yet General Kagan, who herself would benefit from his vision if chosen for the Supreme Court, showed no similar carry-through as Harvard Law School’s first female dean. In others words, there is a Latina on the Supreme Court, but there is no Latino on the Harvard Law School faculty....
When he was a law student, the young Barack Obama protested the lack of diversity on the Harvard Law faculty. He praised the legendary Derrick Bell for leading these protests. Professor Bell, in an act of enormous courage, was willing to yield his Harvard Law professorship to the cause of increasing faculty diversity. What a twist of fate if the first black president -- of both the Harvard Law Review and the United States of America--seemed to be untroubled by a 21st Century Harvard faculty that hired largely white men.