Harvard has defended its use of affirmative action in its admissions decisions for decades, weathering lawsuits and federal investigations with its “holistic” review policy intact.
But if conservative Judge Brett M. Kavanaugh makes it to the U.S. Supreme Court, that might change. Legal experts say Kavanaugh’s nomination could jeopardize the future of affirmative action policies at high schools and colleges throughout the country—including Harvard.
Kavanaugh’s nomination comes as Harvard is facing legal challenges in lower courts for their race-conscious admissions policies, which opponents say discriminate against Asian-American applicants.
If Kavanaugh is confirmed, he will replace retiring Justice Anthony M. Kennedy, who is known for being the Supreme Court’s “swing vote.” In previous Supreme Court cases related to affirmative action, Kennedy joined the liberal wing of the court in upholding race-conscious admissions policies. Kennedy penned the majority opinion in the 2016 Fisher v. University of Texas case, which held that it is legal for universities to consider the race of applicants.
Theodore M. Shaw, a law professor at the University of North Carolina at Chapel Hill, called the nomination a “very profound moment” for the status of affirmative action at institutions across the country because of its potential to shift the ideological balance of the Court.
In a statement responding to the Trump adminstration’s reversal of Obama-era guidelines on the use of race in college admissions earlier this month, Harvard spokeswoman Melodie L. Jackson wrote, “Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years.”
But with Kavanaugh on the bench, the Court might no longer uphold affirmative action.
“If [Kavanaugh] is what they say he is, then that would be a fifth vote who would moor the court further to the right than Justice Kennedy’s presence on the court did,” Shaw said Friday. “And so, that’s a cause for concern for anybody who is a believer, as many people in institutions of this country are, in the value of diversity and opportunity.”
Kavanaugh is likely to hold a less favorable opinion of affirmative action compared to Kennedy, legal experts say. With a decidedly conservative majority, the Court may impose tighter restrictions on affirmative action, according to Bert W. Rein, an attorney who represented Abigail Fisher, a white applicant who sued UT after she wasn’t admitted, in the Fisher v. University of Texas case.
“If I had to guess, I’d say that a more conservative court would first adhere more strictly to some of the limitations that were written into the Court’s decision in Grutter and Fisher,” Rein said, referring to two landmark affirmative action cases.
Those cases laid out guidelines for when weighing race in admissions decisions is legally permissible. Specifically, the Court said universities may consider race in admissions only when they determine that they have a “compelling interest” in achieving diversity, and when race-neutral alternatives do not result in sufficient diversity.
“You might see a more stringent review of whether any university’s program does or does not adhere and honor those limitations,” Rein said.
Harvard could be the first university to experience such a review. Many expect the ongoing lawsuit against the University, engineered by anti-affirmative action activist Edward Blum, to reach the nation’s highest court.
As a circuit court judge, Kavanaugh has yet to issue opinions in cases explicitly related to affirmative action in schools. However, in 1999, before becoming a judge, Kavanaugh co-authored an amicus brief arguing that it was illegal for the state of Hawaii to consider the race of voters in determining their eligibility for participating in certain elections. The Supreme Court agreed, saying that the state’s Office of Hawaiian Affairs could not limit elections to Native Hawaiians.
Notably, Kavanaugh wrote the brief on behalf of the Center for Educational Opportunity. The CEO is a conservative think tank which describes itself as “devoted to issues of race and ethnicity” and firmly opposes affirmative action.
Roger Clegg, a former Justice Department official who is president of the CEO, said Friday that he believes Harvard’s “problematic” race-conscious admissions policy is “vulnerable” in the context of a Supreme Court opinion regardless of who is confirmed to replace Kennedy. Clegg said he expects Kavanaugh to be “more conservative than Justice Kennedy in general on a variety of issues.”
“I think Harvard’s policy would have been vulnerable even if Merrick Garland had been confirmed to be on the Supreme Court,” Clegg said, referring to former President Barack Obama’s nominee. “With that said, I think that naturally, the more conservative the Court becomes, the more vulnerable Harvard’s policy is.”
When questioned about the brief in his 2004 D.C Circuit Court confirmation hearings, Kavanaugh deferred to precedent.
“The Supreme Court has decided many cases on affirmative action programs and, if confirmed, I would faithfully follow those precedents,” he said. “My personal views or the views of my former clients on these or other issues would not affect how I would approach decisions as an appeals court judge.”
Richard H. Sander ’78, a law professor at the University of California, Los Angeles, said it’s “hard to say” how Kavanaugh might come down on issues of affirmative action in higher education.
“Justice Kennedy and Justice O’Connor both had a record of opposing racial preferences in other contexts, and then, modified their positions when they were confronted with university admissions,” Sander said Friday. “I think that for many of the justices, university admissions pose a harder situation than most types of racial preference.”
Certain civil rights groups, however, are concerned Kavanaugh’s legal background poses a threat to affirmative action, and could have a negative effect on other racial issues.
The NAACP wrote in a Tuesday press release, “With a Justice Kavanaugh on the Supreme Court, we could see reversals of hard-won gains securing equal opportunity in education, employment and housing.”
University representatives and Students for Fair Admissions, the group suing Harvard, did not respond to requests for comment.
—Staff writer Delano R. Franklin can be reached at firstname.lastname@example.org. Follow him on Twitter @delanofranklin_.
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