Yale Legacy Admission Brett Kavanaugh Is Now the Swing Vote on Affirmative Action at Universities

A decades-old policy is now facing a legal challenge from the same conservative movement that shaped the ideology of Yale graduate Brett Kavanaugh.

CAMBRIDGE, MA - MAY 24:  Students attend at the Harvard University 2018 367th Commencement exercises at Harvard University on May 24, 2018 in Cambridge, Massachusetts.  Receiving Honorary Degrees in 2018 are Sallie Chisholm, Rita Dove, Harvey Fineberg, Ricardo Lagos, George Lewis, Twyla Tharp and Wong Kar Wai. Representative John Lewis also attended.  (Photo by Paul Marotta/Getty Images)
Students attend the Harvard University's 367th Commencement exercises at Harvard University on May 24, 2018 in Cambridge, Mass. Photo: Paul Marotta/Getty Images

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.

CAMBRIDGE, MA - AUGUST 30: Pedestrians walk past a Harvard University building on August 30, 2018 in Cambridge, Massachusetts. The U.S. Justice Department sided with Asian-Americans suing Harvard over admissions policy.  (Photo by Scott Eisen/Getty Images)

Pedestrians walk past a Harvard University building on Aug. 30, 2018, in Cambridge, Mass.

Photo: Scott Eisen/Getty Images

Jennifer Holmes is a member of the NAACP Legal Defense Fund team working on the case on behalf of a coalition of Harvard alumni and students. In an interview with The Intercept, she pointed out that SFFA and Blum have no history of supporting or advocating for Asian-American students. Blum’s history of fighting anti-discrimination laws, on the other hand, provides more of a window into the reasons for SFFA bringing the suit, said Holmes. “They want to undermine affirmative action,” Holmes said. “And it’s important that those motivations are laid bare.”

The lawsuit is expected to go to trial on October 15, and the Justice Department has joined SFFA’s side in the litigation. That’s in contrast to the Obama administration, which backed the University of Texas in the Fisher case. “No American should be denied admission to school because of their race,” said Sessions in a statement that was highly critical of Harvard’s admissions process.

In an email, general counsel for the American Council on Education, Peter McDonough, said Blum’s strategy would force universities and colleges across the country to completely revamp their admissions processes. According to McDonough, if SFFA wins out in the lawsuit, schools would be forced to use a uniform set of requirements for admission which won’t allow for considerations of race. “SFFA, in substance, asks the Court to require fundamental changes to university admissions processes, and to mandate a more mechanical process in which educators’ ability to choose which academic and other criteria they wish to use, weigh, and apply play next to no role,” said McDonough.

Peter Wood is president of the National Association of Scholars, a right-wing advocacy group that concentrates on education, and which filed an amicus brief in the Harvard case on SFFA’s behalf. He told The Intercept that his organization provided support to Blum’s case because of his association’s 30-year-long commitment to resisting racial considerations in student admissions. “From our founding, we’ve opposed racial preferences in higher education,” said Wood.

“Supporting the suit by Asian students against Harvard was an easy decision for us,” Wood told The Intercept. “We believe the law should be colorblind — students should be assessed on their abilities.”

Blum agrees. The SFFA’s case, in his mind, is part of a history of American activism. “The lawsuit’s goal is to reclaim the cornerstone of the civil rights movement,” said Blum, “which is the proposition that your race and ethnicity should not be used to help you or harm you in your life’s endeavors.”

But affirmative action is not aimed at disadvantaging white students and benefiting minorities. Rather, the intent is to create an equal playing field for groups that have been hindered both historically and currently. And beyond that historical course correction, there’s an argument to be made for affirmative action and any laws that provide ways to diversify the student body: It’s good for everyone. Indeed, one criticism of affirmative action from the left is that its main purpose, from a university’s perspective, is not to benefit the minority applicants themselves but to provide the white students with a rich and diverse experience, while they remain sheltered in an elite environment. Learning in a diverse environment has been shown to provide students with better educational outcomes and better outcomes in the workforce. Those outcomes are part of the reason, Holmes said, that her clients are supporting Harvard in the case. “Harvard is an important place to learn alongside people of different backgrounds,” said Holmes.

Blum is perhaps best known for his involvement in the Fisher case, where plaintiff Abigail Fisher — backed by Blum’s Project on Fair Representation — contended that her race was the determining factor preventing her admission to the University of Texas. However, it was Fisher’s subpar grades and test scores that proved the deciding factor in her rejection, not her race. A Supreme Court ruling in 2016 rejected Fisher’s argument, upholding the university’s right to use race as one of the considerations for admission.

Blum’s litigation has a pattern of aiming for decisions that would result in negative consequences for minorities, particularly blacks and Hispanics. He brought Shelby County v. Holder to the Supreme Court in 2013, where a ruling in Blum’s favor vacated a major piece of the Voting Rights Act. The main beneficiaries of a rule change regarding Harvard’s application process would be white applicants, whose numbers in the student body would increase the most, according to experts consulted by the university. “The laws he’s attacked are ones that were conceived of to remedy former negative outcomes for blacks and, in some places, Hispanics,” said Holmes.

Maybe that’s why Blum doesn’t want to testify — taking the focus off the plaintiffs and placing it onto the conservative activist might imperil the case. Blum’s attorneys filed a motion to keep him from being called to testify in the case, claiming that “Mr. Blum has nothing to add.” Blum’s name was not on the witness list provided by Harvard on Monday.

Describing his past, his opinions, and his involvement with the organization as irrelevant to the lawsuit, Blum dismissed the possibility of testifying in the lawsuit in an email to The Intercept. “My role in this case has no bearing on the evidence SFFA has assembled in the last 3 1/2 years,” said Blum.

That makes sense, said Oren Nimni, an attorney with the Lawyers’ Committee for Civil Rights and Economic Justice and the legal editor for Current Affairs magazine, if only from a political point of view. It’s well-documented that Blum has founded groups that focus on attacking affirmative action; exposing that connection in open court could be damaging. “It’s not to his advantage if he’s seen as the architect of the case,” said Nimni, arguing that Blum learned from his loss in the Texas case. “He probably, and rightly, assumes this is harder to call foul on.”

Correction: October 10, 2018
A previous version of this article incorrectly referred to the NAACP Legal Defense Fund as part of the NAACP. The LDF is a separate entity. 

Top photo: Students attend Harvard University’s 367th commencement exercises on May 24, 2018, in Cambridge, Mass.

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