Conservatives are circulating a new - and patently false - claim about Supreme Court nominee Elena Kagan: that as Harvard Law dean, she dropped a constitutional law requirement in favor of an international law requirement because she believes “foreign law” “trumps” the U.S. Constitution.
On May 21, Americans United for Life issued a memo - tagged "The 'Foreign Justice' Memo" that claimed:
Kagan led curriculum reforms in 2006 that changed Harvard Law School's 100 year-old curriculum to require International and Comparative law.
What course is no longer required? Constitutional law. It became a course students could elect if they so desired.
Days later, a Washington Times editorial headlined "Kagan's Foreign law trumps con-law" similarly claimed:
It was under Ms. Kagan's leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in “International/Comparative Law.” The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.
But a quick review of Harvard Law School JD degree requirements shows this claim is flat out wrong. In fact, the curriculum changes Kagan instituted as dean, which were unanimously approved by the Harvard Law School faculty, added “new first-year courses in international and comparative law, legislation and regulation, and complex problem solving” and condensed the “traditional first-year curriculum (contracts, torts, civil procedure, criminal law, and property).”
Kagan didn't “drop” or “replace” con-law, it wasn't required in the first place. Prior to her deanship - in 2001 and 2002, for example - a constitutional law class was not required. Harvard Law JD degree requirements included “required [first-year] courses in Criminal Law, Contracts, Civil Procedure, Torts, and Property,” “Legal Reasoning and Argument (LRA),” “a first-year elective course; a course in professional responsibility; fifty-two credits in second- and third-year elective courses; and a satisfactory piece of written work.” As is the case now, courses in both the second and third year were all elective.
Furthermore, Kagan's addition of a 1L “Legislation and Regulation” requirement, was designed, in part, to “naturally lead into, and enable students to get more out of, advanced courses in the 2L and 3L years, on legislation, administrative law, a wide range of regulatory subjects (e.g., environmental law, securities law, telecommunications law), and constitutional law.”
Kagan has taught constitutional law at Harvard herself, and has earned praise from former Reagan Solicitor General Charles Fried, a constitutional law expert who taught at Harvard while Kagan was dean.