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J. Michael Smith, Esq.
President

Michael P. Farris, Esq.
Chairman

Senate To Vote This Week on Supreme Court Nominee

William A. Estrada, Esq.
Director of Federal Relations

July 26, 2010

The U.S. Senate is expected to debate and vote on the Elana Kagan nomination to the Supreme Court this week.

HSLDA has previously voiced our concerns about Ms. Kagan’s nomination due to her support of international law. These concerns grew after Senator Chuck Grassley (IA) asked her pointed questions about her reliance on international law.

We have now found out additional information that may reflect Ms. Kagan’s views on homeschooling. In the 1980s, Ms. Kagan—fresh out of law school—clerked for Supreme Court Justice Thurgood Marshall. At that time, HSLDA was battling in state courts for homeschool freedom. One particular case we handled in Ohio was State v. Schmidt, 505 N.E.2d. 627 (1987). In that case, a homeschool family was convicted of failing to send their child to school, and the conviction was upheld by the Ohio Supreme Court. HSLDA petitioned for a writ of certiorari to the U.S. Supreme Court, but it was denied.

Ms. Kagan reviewed the case for Supreme Court Justice Marshall. You can view a copy of her memo below. She recommended against the Supreme Court taking this case, saying:

[The Schmidts] are self-described born-again Christians who adhere to a literal interpretation of the Bible and have little sympathy with the secular world. When their child reached school-age, they decided to educate her at home. They did not seek the permission of the school superintendent; they simply did not enroll her in school.

Ms. Kagan went on to imply that the family’s expression of religion had not been infringed upon by the school district because the family was not being compelled to attend public school. She said that asking permission to homeschool was reasonable. The Schmidt family objected to asking for permission to homeschool because of their religious beliefs.

During Ms. Kagan’s confirmation hearings, Senator Jeff Sessions asked Ms. Kagan what she meant in her memo. Kagan didn’t back away from her memo. Read the full text of Senator Sessions’ questions and her answers online. Question 17 deals with the Schmidt case.

We encourage you to call your two U.S. senators and share with their staff your thoughts about Ms. Kagan’s confirmation.

You can reach your two U.S. senators by calling the Capitol switchboard at (202) 224-3121, or toll-free at 866-220-0044. You can find your U.S. senators by using HSLDA’s Legislative Toolbox.

 Other Resources

Read Elena Kagan’s law clerk notes concerning Schmidt v. Ohio (requires Adobe Acrobat Reader).