The diversity mongers who populate “civil rights groups” are complaining that Harvard Law School didn’t hire any minority professors while Elena Kagan was dean. A letter signed by a collection of such mongers states: “Our trepidation regarding [Solicitor] General Kagan is premised on the lack of a clearly identifiable record on the protection of our nation’s civil rights laws.”
The sloppy construction of this sentence reflects the incoherence of the sentiment it attempts to express. The case against Harvard and Kagan rests on the fact that during her time as dean, the law school hired 29 faculty members — 28 whites and one Asian American. But this hiring pattern, standing alone, does not fail to “protect our nation’s civil rights laws.” Only if Harvard rejected an African-American applicant because of his or her race are these laws not followed.
To my knowledge, no one has pointed to an African-American who applied to be a professor at Harvard Law School but was rejected in favor of an equally or less qualified non-African-American. Thus, there would appear to be no case against Kagan on the civil rights front. The diversity mongers obviously wish that Kagan had doled out a few faculty positions to African-Americans based on their race, but the rest of us should be glad that the latest nominee to the Supreme Court did not engage in this form of racial discrimination.
Unfortunately, however, the White House does not seem glad about this. Instead, it insists that Kagan did not have the final say in hiring at Harvard. As Ed Whelan notes, there is a tension between this claim and President Obama’s attempt to give Kagan credit for Harvard ‘s hiring of a few conservative professors.
I assume that Kagan deserves some credit for both approaches to hiring. But her record of not discriminating based on race provides me with no comfort that, if confirmed, Kagan will vote against race-based preferences in cases before the Supreme Court. It’s far more probable that, like Ruth Bader Ginsburg, Kagan will prove to be from the “diversity for thee but not for me” school.
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