“The use of race to achieve an integrated student body is not necessitated by the lingering effects of past discrimination because race-neutral means to remedy past discrimination will in fact achieve an integrated student body,” wrote Supreme Court nominee Judge Kavanaugh on January 14th, 2003, as the legal case Grutter v. Bollinger hurled towards the Supreme Court.
As part of Senator Cory Booker’s rebellion against the accelerated nomination of Kavanaugh to the Supreme Court, Booker’s office released various emails and documents pertaining to Kavanaugh’s time in the George W. Bush White House which were previously considered confidential to the committee. As a whole, the documents raise questions as to how Kavanaugh would rule in various cases that are becoming less and less hypothetical.
Throughout the emails, Kavanaugh uses excerpts from multiple Supreme Court opinions of different legal philosophies to prove that there are ways to develop race-neutral criteria that would undo the effects of past discrimination. Writing in a second email to various White House lawyers, Kavanaugh points to the court’s ruling against racial preference in determining city contracting opportunities in the case City of Richmond v. J. A. Croson Company. He argues, based on the Croson decision, that an “entity must consider the alternatives and employ them if the alternatives would be efficacious in achieving the objective,” as opposed to merely considering alternatives to affirmative action. Croson was a 6-3 decision in which former Justice Sandra Day O’Connor ruled against rigid racial quotas in city construction contracting.
Kavanaugh’s thought process seemed to make its way into the Bush administration’s amicus brief against Bollinger filed days later, which argues that the University of Michigan “may not employ race-based means without considering race-neutral alternatives and employing them if they would prove efficacious.” While he was consulted on a draft of the brief as late as January 15th, it is unclear to what extent Kavanaugh was responsible for the final language of the brief.
After the release of the amicus brief, Kavanaugh supported releasing a report on all the race-neutral measures the White House felt could help universities “provide equal opportunity without running afoul of the Constitution,” as written by Assistant Secretary of Education for the Office for Civil Rights Gerald A. Reynolds. Reynolds’ recommendations included systematic approaches that would provide “supplemental teacher training” and “additional Advanced Placement coursework” along with other initiatives outside the admissions process. Within the admissions process, however, Reynolds also recommended socioeconomic affirmative action (as opposed to racial affirmative action), and class-rank based admissions, referencing “Texas’s ‘Ten Percent Plan,’” which offered automatic admission into the University of Texas system to Texas high school students who made it to the top 10% of their class. It is unclear whether Kavanaugh supported class-rank based admissions as Reynolds laid out.
Reynolds also recommended a comprehensive review approach. The White House fought against a holistic review approach which included race as an admissions factor in Grutter v. Bollinger and lost. The Texas plan would go on to face challenge from affirmative action opponent Edward Blum after the University of Texas included race as an criteria for accepting students who did not make the 10% cut-off. This mixed system would survive strict scrutiny, but with the support of then-Justice Anthony Kennedy, whose retirement sparked the Kavanaugh hearings. The Texas plan also survived protests from the conservative members of the court and the public, with Justice Samuel Alito arguing that the Texas plan as it stood before the court did not meet strict scrutiny, and Justice Clarence Thomas declaring that race should not be a factor at all.
With Edward Blum in the news again for suing Harvard in a case that could advance to the Supreme Court and challenge the tradition of holistic review protected by Grutter v. Bollinger, Justice Neil Gorsuch and a confirmed Justice Kavanaugh could provide the impetus to severely restrict the use of affirmative action for a generation, or even longer. to severely restrict the use of affirmative action for a generation, or even longer. It was in Kavanaugh’s interest, as with all Supreme Court nominees, to keep his politics to himself and present himself as a Tocquevillian jurist. As this image fades, though, it remains unclear whether Kavanaugh’s positions have changed on affirmative action or whether they may affect his nomination.
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