Bench Memos

Kagan’s Note on Piscataway

Among Elena Kagan’s White House documents that came to light on Friday is a note she “wrote by hand in the margin of a memo from then-Solicitor General Walter Dellinger about the controversial case, Piscataway Board of Education v. Taxman.”  See Jan Crawford’s story here, according to which the note said, “I think this is exactly the right position — as a legal matter, as a policy matter, and as a political matter.” 

The Piscataway case involved a school board’s decision to lay off a white schoolteacher because of a desire for more racial diversity on the faculty; the Justice Department, which had opposed the discrimination in the first Bush administration, switched sides under the Clinton administration. The key issue presented in the case was whether Title VII of the 1964 Civil Rights Act allows employment discrimination in the name of nonremedial “diversity.” The Dellinger memorandum was explicitly premised on the belief that Title VII does indeed permit nonremedial discrimination (although it acknowledged that the school board’s firing of this particular schoolteacher was untenable, based on the specific facts of that case), so Kagan’s note means she agrees with that premise.

Piscataway’s core question is an extremely important one that has never been resolved, since a consortium of liberal civil-rights groups, fearing they would lose, came up with enough money to settle the case after the Court had granted review.  So this note should be of great interest to the Senate Judiciary Committee.


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