Where Does High Court Nominee Stand on Affirmative Action? Here Are Some Clues

By Mark Walsh — July 20, 2018 8 min read
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Judge Brett M. Kavanaugh, President Donald Trump’s nominee for the U.S. Supreme Court, has a sparse track record on affirmative action and racial preferences. But the few clues that exist are not likely to give much comfort to those who believe that pursuing racial diversity in education is a compelling governmental interest.

The stakes are high. The Trump administration this month rescinded Obama-era guidance that emphasized permissible ways for schools and colleges to take race into account to promote student diversity, prompting renewed debate on the issue. A major lawsuit against Harvard University on behalf of Asian-American applicants challenging admissions preferences for other minority group members is moving toward a trial, with the case expected to eventually reach the Supreme Court.

Progressive groups such as the NAACP Legal Defense and Educational Fund, the Lawyers Committee for Civil Rights Under Law, and the Alliance for Justice have all suggested in their rhetoric that Kavanaugh has shown a hostility to civil rights, including on affirmative action, but they haven’t yet addressed the topic in detail.

David Cole, the legal director of the American Civil Liberties Union, which doesn’t take positions on Supreme Court nominees, wrote in The New York Review of Books this month that one key question for Kavanaugh is whether he believes that public colleges and universities have a compelling interest in ensuring that they have diverse student bodies.

“If Kavanaugh is unwilling to recognize the long-established principle that diversity is a compelling interest, he may provide the fifth vote to end affirmative action,” wrote Cole, who noted that retiring Justice Anthony M. Kennedy was the fifth vote to uphold such a program.

Kennedy, whom Kavanaugh would succeed if he is confirmed by the U.S. Senate, was deeply skeptical of government racial preferences during his time on the bench, but his views were nuanced.

Kennedy joined a 2007 decision striking down voluntary race-conscious school district plans for the assignment of students. But he wrote a concurrence that said districts could still take limited steps to achieve a racially diverse student population. And while Kennedy typically called for racial preferences in higher education to undergo the most exacting judicial scrutiny, he was the key vote in 2016 to uphold a race-conscious college admissions program.

Kavanaugh hasn’t ruled on such policies during his 12 years on the U.S. Court of Appeals for the District of Columbia Circuit. But there are a handful of clues that legal observers are pointing to that offer some insights into Kavanaugh’s views on racial preferences.

Last year, in a speech at Notre Dame law school, Kavanaugh briefly addressed “the 14th Amendment and affirmative action.”

The Supreme Court “has recognized a basic equal protection right not to be treated differ-ently by the government on account of your race,” he said. “But there is a long-standing exception for affirmative action, at least in the realm of higher education.”

Kavanaugh then described how the high court has “battled” in cases about racial preferences in admission over the level of scrutiny to apply and whether such preferences constitute a compelling governmental interest. He said that in its higher education admissions cases in 1978’s Regents of the University of California v. Bakke and since then, the court “found that ensuring diversity is a compelling interest but remedying the effects of past societal racial discrimination is not a compelling interest.”

“In those cases, the court also battles over whether the affirmative action program is narrowly tailored to promote the state’s interest in ensuring diversity,” Kavanaugh continued. “On what basis is the court making those decisions? Is there something in the text of the Constitution that tells us one is good enough and the other is not good enough? Not really.”

Kavanaugh’s remarks weren’t a harsh slam against race-conscious programs, but his language is not likely to give much comfort to proponents of affirmative action, either.

A Case on Hawaiian Ancestry

Legal observers are also looking back nearly two decades ago, to a brief Kavanaugh co-wrote in a case about a racial classification in voting.

In 1999, Kavanaugh, then a lawyer in private practice, helped write a friend-of-the-court brief in a Supreme Court case about a classification based on ancestry adopted by the state of Hawaii for who could vote for the trustees of a state agency called the Office of Hawaiian Affairs.

The case of Rice v. Cayetano involved a constitutional challenge to a provision of the Hawaii Constitution that permitted only those citizens descended from people who inhabited the Hawaiian Islands in 1778 to vote for the trustees of the agency that administered benefits for that group (which included a subset viewed by the state as “native Hawaiians”).

“This court’s cases establish that the equal protection clause prohibits racial classification except when such classifications are necessary and narrowly tailored to serve a compelling government interest,” said the brief filed by Kavanaugh in 1999 on behalf of the Center for Equal Opportunity and three other parties opposed to racial preferences.

“Outside of an immediate threat to life or limb, as in a prison race riot, a compelling government interest exists only when the government has imposed the racial classification as a remedy for past, identified discrimination in that jurisdiction and field (such as discrimination in the schools in a particular jurisdiction),” the brief said.

Kavanaugh, then a lawyer with the firm Kirkland & Ellis, was the counsel of record for the brief. But he had some distinguished help. Robert H. Bork, whose Supreme Court nomination under President Ronald Reagan went down to defeat in 1987, was one co-author. Another was Theodore W. Ullyot, then a young law firm associate of Kavanaugh’s who later went on to serve as general counsel of Facebook.

And the fourth author was Roger Clegg of the Center for Equal Opportunity, a Washington policy organization that frequently expresses views against affirmative action.

“As for how much of this brief was Brett’s work and how much was that of the other three authors, I do not recall,” Clegg said in an interview. “I can say that this is a case where the Center for Equal Opportunity would have had substantial input. We’re opposed to racial preferences in all areas.”

The challengers in the Rice case were represented by Theodore B. Olson, a future U.S. solicitor general, while John G. Roberts Jr., the future U.S. chief justice, argued for the state in defense of its voting classification.

Another amicus brief came from the Kamehameha Schools, the prestigious private school established to serve children of Hawaiian descent, which feared the implications a ruling against the restrictive voting policy might have for its own admissions policy. (The school’s policy was challenged on equal-protection grounds a few years later, but upheld by a federal appeals court.)

Citations in Later School Cases

In its 2000 decision in Rice, the high court held 7-2 that the state was using Hawaiian ancestry as “a proxy for race,” and that allowing only the state’s defined group of Hawaiians to vote in the trustee elections was an unconstitutional racial classification. Kennedy wrote the opinion for five members of the majority.

Language from Kennedy’s majority opinion in Rice would find its way into some of the court’s later decisions on race preferences in K-12 and higher education.

In 2007, in Parents Involved in Community Schools v. Seattle School District, the court invalidated two school districts’ voluntary race-conscious student assignment plans. Roberts wrote a plurality opinion that said there were “undeniable” costs to racial classifications. He quoted from decision in the Hawaiian voting case he had lost as an advocate.

“As the court explained in Rice ... , ‘one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities,’” Roberts wrote, quoting Kennedy’s opinion in the Hawaii case.

In 2016, in Fisher v. University of Texas at Austin (Fisher II), in which the court upheld (in an opinion by Kennedy) the university’s race-conscious admissions plan, Justice Samuel A. Alito Jr. wrote a vigorous dissent that quoted a passage from Kennedy’s opinion in Rice: “Given our constitutional commitment to ‘the doctrine of equality,’ ‘distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.’”

The internal quotations in that passage are, as Kennedy acknowledged in his Rice opinion, from Hirabayashi v. United States, a 1943 decision which despite that lofty language upheld a curfew for people of Japanese ancestry living near designated military areas based on the wartime need to protect against espionage and sabotage. (The better-known decision in Korematsu v. United States, in 1944, upheld the internment of people of Japanese ancestry.)

Kennedy, when writing the opinion in Rice, probably did not need to rely on the briefs to find the “odious to a free people” passage from Hirabayashi. But both Olson, in the challengers’ brief, and Kavanaugh and his co-authors, in the CEO brief, made sure to point it out to the court.

Clegg, who supports Kavanaugh’s nomination, says the fact that Kavanaugh “was willing to write a brief with these arguments is a mark in his favor, but I don’t know how much can be concluded about his own views” on racial preferences.

It’s possible that more clues about Kavanaugh’s views on affirmative action will emerge.

In 2003, the Supreme Court considered race-conscious admissions plans at the University of Michigan, striking down a system awarding extra points for undergraduate applicants from underrepresented racial groups (in Gratz v. Bollinger) but upholding the law school’s consideration of race as part of an individualized review of each applicant (in Grutter v. Bollinger).

Kavanaugh was serving in the White House counsel’s office under President George W. Bush at a time when the Bush administration filed a brief that opposed both of the university’s admissions programs at issue. It’s possible Kavanaugh may have chimed in with views and advice in those cases, in which Bush took a special interest.

Senate Republicans and Democrats are still fighting over the scope of documents from Kavanaugh’s White House service that will be released as part of his confirmation process.

A version of this news article first appeared in The School Law Blog.