Scholars: Kavanaugh 'could undermine diversity on college campuses’

A University of Texas at Austin law professor and postgraduate fellow argued that Brett Kavanaugh should not have been confirmed if he will not support affirmative action in university admissions.

Affirmative action will capture the national spotlight later in October when Harvard University fights off a lawsuit alleging it discriminated against Asian American applicants.

The pair argued that “race-conscious admissions ultimately benefit all students."

A law professor and scholar at the University of Texas (UT) at Austin co-wrote an article on Tuesday insisting that then-Supreme Court nominee Brett Kavanaugh - now Supreme Court Justice Kavanaugh - should not be confirmed due to his opposition to affirmative action.

UT law lecturer Shavonne Henderson and UT Juris Doctorate postgraduate fellow Martin Kamp penned the op-ed, titled “Kavanaugh Could Undermine Diversity on College Campuses” and published the piece on the University of Texas at Austin’s official news site.

“The Supreme Court’s longstanding position has been that colleges and universities have a compelling interest in diversity and may consider race among many factors when assessing qualified students for admission,” the professor and postgraduate fellow write. “But if Brett Kavanaugh is appointed, that position could change and would probably signal a return to pre-Civil Rights era race-neutral admissions policies.”

The Senate confirmed Kavanaugh in a Saturday afternoon vote. He was sworn in as a Supreme Court justice that night.

[RELATED: Students blast affirmative action as ‘disservice to diversity’]

“This is not what America needs,” Henderson and Kamp assert in the op-ed, published Tuesday. “Race-conscious admissions policies remain vital for ensuring diverse student bodies that reflect our ever-changing society. If Kavanaugh can’t support this longstanding position, he should not be confirmed.”

The scholars cite Kavanaugh’s praise of late Chief Justice William Rehnquist and the late “anti-affirmative-action jurist” Antonin Scalia as evidence that he should not be confirmed. But the article does not make clear how aligning with past Supreme Court justices on the issue of affirmative action disqualifies a potential Supreme Court justice.

Henderson and Kamp acknowledge that Kavanaugh’s opposition to affirmative action policies stems from his belief that such policies contradict rights granted by the Fourteenth Amendment.  They then reason that, “given his position on the constitutional validity of reproductive rights, it is doubtful that Kavanaugh will support race-conscious admissions policies.”

“Race-conscious admissions ultimately benefit all students,” the pair conclude in the piece.

Students for Fair Admissions, a group representing Asian American students, is contesting this notion and has filed a lawsuit against Harvard, claiming that the Ivy League school’s affirmative action policies discriminate against Asian American students, docking their application in categories such as likability and “positive personality.”

[RELATED: AAUP, Ivy League defend Harvard’s affirmative action policies]

”The record evidence demonstrates that Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups -- including both white applicants and applicants from other racial minority groups,” the Justice Department stated in August.

Students for Fair Admissions will take its lawsuit against Harvard to Boston’s U.S. District Court on Oct. 15.

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