Brett Kavanaugh is now a Justice of the U.S. Supreme Court, and part of his narrative is working assiduously to advance women and minorities in clerkships, both for himself and the judiciary generally. In fact, all four of Kavanaugh's clerks on the Supreme Court are women, the first all-female staff in the Court's history, and one is African American. Further, two of the three African Americans clerking on the Court previously worked for Kavanaugh when he was on the Court of Appeals.
The Court, however, is split on the circumstances under which diversity and affirmative action in employment are permitted as a policy, with four Justices favoring it and four, including Chief Justice John Roberts, viewing it skeptically. Roberts famously asked during oral argument in a recent higher education case, “What unique perspective does a minority student bring to a physics class?”
So, how will Justice Kavanaugh rule when the next diversity case reaches the Court?
During his confirmation hearing, Kavanaugh talked about the challenges his mother had as a judge. He also cited the fact that he was the first jurist on the D.C. Circuit to have an all-female class of clerks. “My law clerks come from diverse backgrounds and points of view. A majority of my 48 law clerks have been women. More than a quarter of my law clerks have been minorities. And I have had far more African-American law clerks than the percentage of African-American students in U.S. law schools.” Further, he described his efforts to break down the old boys’ club that has produced an over-representation of white males as Supreme Court clerks.
Nevertheless, the skeptics of affirmative action on the Court consider themselves strict constructionists as does Kavanaugh. Will he, like other strict constructionists, read the Equal Protection Clause of the Fourteenth Amendment as permitting affirmative action and diversity programs only so long as they are narrowly tailored, have limited time frames, and remedy proven discrimination?
This is important because we often hear employers say diversity is a key element of their talent strategy and that it’s not done to correct prior injustice. Rather, it's done because it makes business sense and is “the right thing to do.” The reality is that there is little support in the law for either rationale.
The most recent diversity case involving employment came before the Supreme Court in 2009, Ricci v. DeStefano. It dealt with a challenge to a promotion system utilized by the New Haven Fire Department. The Court held that before an employer undertakes actions to avoid disparate impact, it must have a strong basis in evidence to believe it will be subject to liability if it fails to take that action. The case was decided five to four in favor of the employer’s program with the strict constructionists in the minority. Still, several observers read the majority as requiring employers to lay out a case against themselves before launching a diversity program.
Seven years later, another diversity case came before the Court, Fisher v. University of Texas (II). It dealt with UT’s admissions program which was adopted to address significant under-representation of minorities in its incoming classes. That case was decided four to three; Justice Scalia died soon after the case was argued and Justice Kagan had recused herself. The opinion of the Court upheld the admissions program and was written by Justice Kennedy, whose seat Kavanaugh has taken. Kennedy's conclusion was that holistic reviews of a candidate that contain race as a factor are valid components of an admissions selection process.
Three Justices now sitting on the Court dissented—Roberts, Alito, and Thomas.
The lengthy dissent filed by Alito and Roberts borders on a rant. Among the arguments, “What is at stake here is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’ without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.” Justice Thomas was more dismissive, filing a short piece saying any consideration of race in admissions decisions is “categorically prohibited” and “does not change in the face of a faddish theory” that “may produce educational benefits.”
Had Gorsuch and Kavanaugh been on the Court when this case was decided, would each have joined Roberts, Alito, and Thomas to become a five-member majority?
Regarding Kavanaugh’s views, there is very little in the more than 300 opinions he participated in as an appellate court judge to indicate where he might come down on affirmative action. But there are hints in various emails he wrote in policy deliberations during the time he was working in the White House during the Bush 43 administration.
In a 2001 exchange, senior administration officials were trying to figure out how they might defend the Department of Transportation’s Disadvantaged Business Enterprise program involving highway construction projects. Kavanaugh wrote that while Ted Olsen, the Solicitor General at the time, should take first crack at coming up with a position, his “personal opinion” was that Olsen should file a brief calling the program unconstitutional because it was a “naked racial set-aside.” The case was a high profile challenge to a government contracting affirmative action program, and Olsen eventually punted, urging the Court to dismiss the case which it did, leaving the issues unresolved.
In an exchange a year later regarding a Native American Small Business Administration program, Kavanaugh said “serious problems” would be raised if it provided benefits to Native Americans solely because of their race or ethnicity. His reasoning was that Supreme Court decisions and the Constitution generally require that “all Americans be treated as equal (absent a program narrowly tailored to serve a compelling government interest). The desire to remedy societal discrimination is not a compelling interest…”
And that's the key point. Is the promotion of diversity by employers a compelling government interest such that diversity programs do not violate the Equal Protection Clause? That’s a complicated question for discussion in a future blog.
Judge Kavanaugh did describe the current state of affirmative action law during his confirmation hearing, asking “how do we determine whether a particular affirmative action program passes muster or not” under the Equal Protection Clause? He said the Supreme Court “battles over whether the affirmative action program is narrowly tailored to promote the state’s interest in ensuring diversity. 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...” was his conclusion, leaving the field wide open for interpretation.
At the moment, there are at least two new cases involving diversity in higher education working their way to the Supreme Court, one filed against Harvard and the other against the University of North Carolina. At the same time, a bill was recently enacted into law in California requiring every publicly traded company headquartered in the state to have at least one woman on its Board, an action that may be challenged as violating the Equal Protection Clause. There are other cases as well in the works, which means the Court's majority soon may have ample opportunity to make its views known on diversity and affirmative action.