Kagan: "Separate-but-Equal Is Fine By Me"

Everyone who knows anything about American legal history knows the story of “separate-but-equal”… A controlling authority, in order to enforce its political will and that of its constituency, decides not to integrate groups of people as the law requires… but instead, sets up a system where the less-favored group is still segregated and treated as a “separate” class, but is given what the authority says is “equal” treatment.

In the case of American education and civil rights, that dancing-on-the-edge theory was struck down in the 1950s when the Supreme Court (spurred on by Elena Kagan’s self-professed hero Justice Thurgood Marshall) decided Brown vs. Board of Education, reasoning, among other things that the very act of segregating the groups made equality impossible.

How ironic that Kagan, pressed by the GOP members of the Judiciary Committee on her illegal actions as Harvard Dean (in which she segregated military recruiters from all other recruiters and denied them use of the school’s Career Office) could only offer the excuse that in the end, the military did have “equal and full access” to Harvard students. Just different.

With that lame excuse, Kagan kicked her idol’s lifetime achievement to the curb, and turned her back on Thurgood Marshall’s reasoning that by its very nature, separate CANNOT be equal. It’s like being “a little bit pregnant” – two things are either equal, or it’s not. In the eyes of Congress, who wrote the law Kagan willingly broke for her own political beliefs, “equal” clearly meant “identical, with no difference between them.” Certainly not the stratification of recruiters into a “first class” and “second class” status, with one group having the advantages of using Harvard Law’s Career Office, and the other relegated to working through veteran volunteers.

If the military did just as well without the Career Office – as Kagan repeatedly maintained – then the obvious question is: why did Harvard have a Career Office at all? Wasn’t it an unnecessary expense? Why not let ALL recruiters operate the same way?

Kagan tried to make the case that her actions – which she won’t even admit were illegal – were justified, because she was trying to “follow the intent of the law” while “staying true to Harvard’s longtime policy regarding discrimination.” In other words, she should be admired for having come to a Solomon-esque conclusion on such a difficult matter.

Hmmmm… Doesn’t that sound EXACTLY like something a proponent of separate-but-equal school systems might have said in the 1950s: “Well, we’re trying to follow the intent of the civil rights laws while still respecting our state’s longtime tradition of segregation.”

I guess Ms. Kagan believes such reasoning passes legal muster – as long as it is being used in service of one of her politically correct beliefs. The ends justify the means… as long as the cause is “right.”

If that isn’t the definition of an activist judge… what is?