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Kavanaugh and higher education

August 29, 2018

After Supreme Court Justice Anthony Kennedy announced his retirement -- handing President Donald Trump a second pick on the high court,  furthering the bench’s rightward shift and subsequently  the president’s conservative agenda -- a litany of hot-button issues were called into question: Would Roe v. Wade be overturned? Would the power of the special counsel’s investigation into Russian interference in the 2016 election diminish?

 

But the announcement and likely confirmation of  Kennedy’s replacement,  Judge Brett Kavanaugh -- a Yale Law School graduate and former George W. Bush Administration official --  could not only affect the insular world of Washington politics, it may have an impact on higher education.

 

 

An examination of reports on Kavanaugh's views on schooling including affirmative action and student loan oversight, underscore the judge’s discontent with overreaching federal regulation, yet it remains largely unclear what it could mean for current and prospective University of Toledo students.

 

“I think a lot of people’s eyes are on Kavanaugh to see whether this could be the doing away of that swing vote,” said Jon Valant, a fellow in the Brown Center on Education Policy at the Brookings Institution, referring to former Justice Kennedy’s decision to side with the liberal justices in upholding a 2016 affirmative action case.

 

 “And...we now have a sort of solidly five conservative  justices… that puts a lot of today’s affirmative action programs at risk.”

 

He spoke in a phone call interview with the Independent Collegian.

 

Although Kavanaugh has not formally ruled on the program, legal and education experts have pointed to a brief Kavanaugh wrote on behalf of the Center for Equal Opportunity, a group that opposes race-based affirmative action in college admissions.

 

In it, he labeled a Hawaiian law allowing only Native Hawaiians to vote in elections for the Office of Hawaiian Affairs as unconstitutional, claiming it discriminated against other races in the voting process.

 

That echoes a conservative view depicting affirmative action as a form of  so-called “reverse discrimination,”  a system in which the majority is placed  at a disadvantage to prop up a long-discriminated against demographic.

 

 “There is strong reason to suspect from that [brief],  that he would not be a voice that is friendly to affirmative action programs,”  Valant said.

 

According to William Pierce, the director of  undergraduate admissions, the University of Toledo does not use race as a factor when it comes to admissions.

 

But, “we work diligently to attract students with diverse backgrounds and experiences to campus and support their success,” wrote William McKether, vice president for diversity and inclusion, in an email.

 

“The University follows all federal and state laws, and should the Supreme Court take up a case related to affirmative action and make changes, we would review the impact on University operations and make any adjustments that would be necessary.”

 

Kavanaugh may also pose a threat to regulations controlling student loans.

 

Once an individual is admitted to their school of choice, federal grants and loans often fail to cover tuition, forcing students to turn to third-party, private lenders, whose loans are usually more expensive and less flexible than government loans.

 

The Consumer Financial Protection Bureau -- set up under the 2010 Dodd-Frank Law as a form of federal oversight after the financial crisis -- pursues cases against  abusive lenders and acts as a watchdog for students in the college payment process.

 

Kavanaugh, parallel to his brief concerning affirmative action, said in a 2016 opinion that the oversight group is an “unconstitutional” body, citing “enormous executive power”  placed on its director.

 

But, according to Vaishali Rao, a lawyer practicing in Consumer Financial Services with particular emphasis in regulation & compliance, it is not Kavanaugh students should worry about when it comes to student loans.

 

“I don’t know if Kavanaugh  will have any impact on  that [lending]  because  you would need an issue that gets taken to the Supreme Court. I think he actually might have been more dangerous on the D.C. Circuit Court for student lending protections,” said Rao in a phone call, referencing the court Kavanaugh currently serves on. 

 

She said the CFPB  is already under constraint in the Trump Administration with its director, Mick Mulvaney and his highly-critical views towards the regulatory behavior delegated to the very bureau he oversees.

 

In fact, Seth Frotman, the group’s student loan ombudsman, resigned on Monday explaining that current leadership "has turned its back on young people and their financial futures."

 

So instead of paying attention to Kavanaugh, whose unconstitutional ruling on the CFPB is both “nuanced” and unclear in relation to predatory lending,  Rao recommends looking at Director  Mulvaney and states’ attorneys generals who deal directly with the oversight policies.

 

Repeated requests for comment from CRC public relations, a conservative group working to push Kavanaugh's confirmation, were not returned at the time of publication.

 

 

 

 

 

 

 

 

 

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