With Kavanaugh Forced Into his Entitled Seat on the Bench, the Supreme Court Could Strike Down the Use of Race in College Admissions in New Case


From [HERE] DURING HIS SENATE Judiciary Committee testimony, new Supreme Court Justice Brett Kavanaugh took obvious pride in getting into Yale, citing it as evidence that he didn’t have a drinking problem. “I got into Yale Law School. That’s the No. 1 law school in the country. I had no connections there. I got there by busting my tail in college.”

But, as with much of his testimony, this wasn’t exactly true: Kavanaugh’s grandfather had gone to Yale University for undergrad, just as Kavanaugh later did, making him a legacy student. And admission to an undergraduate institution can more than double a student’s chance of getting into that institution’s graduate schools. Getting into college, especially Ivy League schools, is traditionally as much a matter of who you know as it is what you know.

For this and other long-recognized structural reasons, it has historically been more difficult for minority applicants to get accepted into institutions of higher learning. The remedy for this society-wide disadvantage became known as affirmative action — the idea that admissions officers would affirmatively work to consider the relative advantages of wealthier, whiter candidates against less affluent, browner candidates, in order to level the playing field.

The practice of considering race in admissions processes now faces a new legal challenge, and with Kavanaugh on the bench, the Supreme Court could be poised to strike it down. The Wall Street Journal editorial page on Monday anticipated just that outcome, if Chief Justice John Roberts decides to go for it:

With the politics surrounding the Court so polarized, [Roberts] might be more cautious than warranted on issues where the Court needs to clear up its own indecision. One of those issues is the constitutionality of racial preferences, about which former Justice Anthony Kennedy continued the legal hair-splitting of Sandra Day O’Connor. Justice Kavanaugh is likely to join the other four conservatives.

That the blow would be dealt by a legacy Yale admission from Georgetown Preparatory School is perhaps as fitting as it is ironic.

The elite hold over the American college admissions process has slightly lessened in past decades, provoking a backlash from conservatives who claim that considering race in that process is a form of discrimination. One of the leading voices in that fight is Edward Blum, a conservative political activist who is most famous for his 2016 attempt to dismantle affirmative action in Fisher v. University of Texas. That effort flopped, losing 7-1, in part because the plaintiff objectively and demonstrably did not meet the admission standards of the school she claimed she was entitled to attend.

On October 15, Blum will be back, this time with a potential Supreme Court majority. A group called Students for Fair Admissions, which Blum founded, will go to trial in Massachusetts District Court, claiming that Harvard University is discriminating against Asian-American applicants to the school.

In late September, Jeff Sessions’s Justice Department brought its own suit against Yale, claiming the university’s admissions policies unfairly disadvantage whites.

There’s a lot of money behind Blum’s efforts. The SFFA is funded primarily by right-wing dark money filtered through groups like Donors Trust, a 501(c)3 organization that benefits right-wing charities by bundling donations from the Koch brothers and the Mercer family, among others. Lawson Bader, the president of Donors Trust, told The Intercept in an email that SFFA is just one of the many organizations his group funds. “We have made over $1 billion in grants to nearly 2,000 such organizations focused on social welfare, religion, health, medicine, education, public policy, the environment, economics, governance, foreign relations, and arts and culture,” said Bader.

According to filings reviewed by The Intercept, at its founding in 2015, SFFA received $500,000 from the Project on Fair Representation, another Blum foundation. In 2015 and 2016, SFFA received a total of $699,350 from the Project on Fair Representation; in 2016, Donors Trust gave to SFFA directly, pouring some $250,000 into the organization.

SFFA cites the low “personal rating” scores Harvard gives to Asian-American applicants to demonstrate that the university’s admissions process discriminates against them. The ratings, which range from 1 to 6 in descending order (1 is “outstanding,” while 6 is “worrisome”), consider “humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.” Asian-American students have consistently scored on the lower end, the suit claims.

More broadly, the case challenges the constitutionality of using race as a factor in admissions altogether. Although racial quotas have long been deemed unconstitutional, the limited use of race in the admissions process alongside race-neutral factors has been upheld by a number of Supreme Court decisions, including most recently in Fisher v. University of Texas. In the Fisher case, the court held that the University of Texas had a “compelling interest” in considering race, satisfying the standard of scrutiny required to establish whether the government’s raced-based interventions are constitutional.

It’s important to separate those two prongs of the complaint in order to parse out the question of motive, explained Nicole Gon Ochi, an attorney with Asian Americans Advancing Justice, or AAAJ, a group which filed an amicus brief with Harvard in the lawsuit. If Harvard is giving an advantage to white applicants over Asian-American applicants, that’s unrelated to the constitutionality of affirmative action — though Blum has tried to muddy the waters. “These two distinct issues have been intentionally conflated by Edward Blum to drive a wedge between Asian-Americans and other communities of color, in a play that will ultimately benefit the white majority if it is successful,” Ochi told The Intercept.

Kavanaugh provided legal counsel to President George W. Bush during the 2000 Florida recount litigation, and was in the White House when the administration pushed against the University of Michigan’s use of race as a factor in admissions. He declined to comment on affirmative action at his hearing. “As a lawyer in the White House, any views I expressed would have been in keeping with trying to advance President Bush’s legal and policy agenda. As a judge and a nominee, your question implicates issues that remain in dispute and that may come before me as a judge. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me,” he said.

He was later asked why it was okay for him to take pride in his ability to hire diverse clerks, but universities ought to be barred from doing the same thing.

“I am proud of my record of hiring the best to serve as my law clerks — including women and minorities — and of my efforts to promote diversity. The extent to which public universities may consider certain factors as admissions criteria is the subject of precedent and ongoing litigation,” he said.

In his follow-up hearing sparked by sexual assault allegations, Kavanaugh was much less reticent to express opinions, blasting Senate Democrats on the committee and decrying what he called a conspiracy against him to exact “revenge on behalf of the Clintons.” He noted that “what goes around comes around,” denouncing the “special interests” who he said were engaged in the conspiracy. The policy of affirmative action is most closely associated with Democrats — or “you people,” as Kavanaugh referred to them at his hearing — which suggests he is unlikely to look dispassionately at the case.

“If you have Kavanaugh on the Supreme Court replacing Kennedy, then yeah, I do think” Harvard will lose the case, said University of Pennsylvania law professor Kermit Roosevelt. “Not because Harvard was doing anything wrong under current law, but because the Supreme Court is going to change its interpretation.”

Kavanaugh was pressed by Sen. Cory Booker, D-N.J., during the confirmation process on a number of comments he made that suggest he opposes affirmative action in admissions, but the judge deflected those questions. [MORE]