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Elena Kagan's Cultural Competence Questioned

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No one is more delighted than I am that esteemed presidential historian, Annette Gordon- Reed will join the faculty at Harvard Law School. Despite the fact that she was recruited by then Dean Elena Kagan, I respectfully disagree with Charles Ogletree that Elena Kagan is a good choice for the Supreme Court.

Ogletree argues that from 2003 until the end of Kagan's deanship in 2009, the number of African American students matriculating rose to an all time high. I am sure this is accurate, but how relevant is it?

Do these numbers speak to the quality and caliber of student life? Are Harvard graduates fully engaged and can they provide an effective and vigorous understanding with matters pertaining to race? Or, are they merely defenders and justifiers of the status quo?

I suggest that Professor Ogletree look at the April 30, 2010 blog post written by Diane Lucas. Ms. Lucas was a guest blogger for FEMINISTE and authored a piece entitled, "The Racist Breeding Grounds of Harvard Law School". Lucas wrote this article to discuss the racist behavior of Stephanie Grace, a graduating student, and to discuss her own experience as a Black student at HLS. Lucas critiqued Kagan's leadership before she knew that Kagan was the U.S. Supreme Court nominee.

Lucas writes,

"When I was at HLS in 2006, there was a student-run but HLS-endorsed parody play featuring students and professors, in which individual students, mostly women of color, were roasted using highly offensive racial, gender and classist stereotypes-basically a modern day minstrel show. I was disgusted. When we protested and communicated how upset many of the black and Latino students were, we were criticized as being too sensitive, for not being able to take a joke and for trying to suppress free speech."

She goes on to describe how then Dean Elena Kagan refused to take a stand, stating that she could not take responsibility for the parody -- even though she actually had an on-stage role in its performance. Professor Charles Ogletree, Jr. and Professor Martha Minow (now Dean Minow) took the lead in organizing a well-attended town hall. The students specifically asked Dean Kagan to start diversity sessions to keep the conversation going, and nothing happened. Dean Kagan's failure to take a stance is deeply concerning, and personally, I think Ms. Lucas has a point.

I consider myself to be one of the most privileged law students in America. In this economic downturn, not only will I return to a tenured professorship when I graduate, I will rejoin a faculty that was given a 2.5 % salary increase. My colleagues are looking forward to my return, yet supported my paid leave. Every day I drive to school in a decent car, return to a lovely home, and I am greeted by a family who supports me.

The curriculum has been challenging, but given my career security, the stakes have been low. Even with these advantages, law school is among the most hostile experiences of my adult life. The faculty of my law school has exactly one member from my racial group. At age 40, I can't believe this actually matters, but here's an anecdote to explain why it does.

In the fall, I took a course in which the white male professor explained to the class that in 1999, during a budget discussion among three Washington, D.C., municipal officials, one of them, David Howard, said that he would have to be "niggardly with the fund because it's not going to be a lot of money." His Black colleague "stormed out" and got the new Black mayor, Anthony Williams to force Howard's resignation. My professor argued that Howard's reinstatement was just, because what had occurred was not a racist act.

How does this relate to the nomination of Elena Kagan? What happened in my classroom was to be expected. We are located in Minnesota, one of the most homogenous states in the country, and that makes it difficult to recruit students who have enough lived experience or academic training in Ethnic studies to challenge the faculty. We are also not an institution with a $1.7 Billion endowment that draws thousands of applications for one tenure track position.

And yet the hiring of professors of color is better at my school than Harvard's. Yes, I did just say better. Therefore, it became apparent to me why Stephanie Grace could earn an illustrious JD from Harvard Law School, and yet send out a mass email seriously entertaining "the possibility that African Americans are, on average, genetically predisposed to be less intelligent."

Clearly, Grace has not been exposed to the racial analysis and legal prowess exhibited by professors of color. Too bad she's going to miss the opportunity to discuss her ideas with Annette Gordon-Reed.

Which points back to why Kagan is the wrong choice for the Supreme Court. Until last week, with all the resources at her disposal, of her 29 hires as the dean of Harvard Law School she could not find one Black professor worthy of an appointment.

For this fact alone, she should not be approved for the U.S. Supreme Court. We can't reward cultural incompetence. Thurgood Marshall knew better, and Kagan should have done better. Failure to find a more culturally competent Justice of any background is just wrong.

Actually, it's down right niggardly.

The author thanks Kathleen Wells and Lori Stee