In one of her first official acts as solicitor general, Elena Kagan recused in a brief filed with the Supreme Court on Wednesday in Horne v. Flores, an Arizona education case with civil rights implications. The amicus curiae brief was filed on behalf of Hispanic residents who claim that the state has not done enough to fund education for English language learners. Arizona says a federal court order mandating more school funding for English learners interferes with state prerogatives.
Normally, the solicitor general is the counsel of record on such briefs. But when the brief in the Arizona case was released, Deputy Solicitor General Neal Katyal was listed as the main lawyer in the capacity of acting solicitor general. A footnote said, "The solicitor general is recused in this case."
Calls seeking an explanation from Katyal or Kagan have not yet been returned. But the likely reason for her stepping aside may be found on the face of another brief in the case, filed by the Arizona parents against the state. The counsel of record for the Flores respondents is Sri Srinivasan of O'Melveny & Myers, but also listed is O'Melveny's Walter Dellinger and the "Harvard Supreme Court and Appellate Clinic."
That clinic, one of several Supreme Court clinics created at top law schools in recent years, was launched in 2007 by Kagan and others while she was dean of Harvard Law School. She may have felt her identification with the Harvard clinic was strong enough that her objectivity in making determinations about joining the Arizona parents' brief as solicitor general could be questioned.
This article first appeared on The BLT: The Blog of Legal Times.