Kennedy resignation could spark changes to affirmative action Presented by Comcast

With help from Benjamin Wermund

KENNEDY RESIGNATION OPENS DOOR FOR ANOTHER TRY AT AFFIRMATIVE ACTION: Supporters of race-based college admissions practices are bracing to defend affirmative action yet again — even though the Supreme Court upheld the policies just two years ago. That’s because Justice Anthony Kennedy, who announced Wednesday he plans to retire, was the key swing vote in the 2016 decision that preserved affirmative action in admissions.


— “There has been a relentless attempt to dismantle affirmative action,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, which helped defend the University of Texas at Austin in the case. “It was Justice Kennedy who really stood the line.”

— Kennedy wrote the 2016 opinion upholding affirmative action policies in college admissions. The case was decided 4-3 in favor of UT Austin over Abigail Fisher, a white woman who sued the school in 2008 after she was denied admission. Kennedy wrote that "considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission."

— “It was precisely the kind of case that demonstrates how important Justice Kennedy’s voice can be,” Ifill said. “It’s hard for me to imagine a justice that would be nominated by this president, who would take the position that Justice Kennedy took.” She said it’s “easy for me to imagine” the Supreme Court will take up another affirmative action challenge “despite the fact that they just ruled on this issue in 2016.”

— Ifill pointed to Justice Elena Kagan’s dissent in Wednesday’s ruling in Janus v. AFSCME, in which Kagan “talks about the raw power being exhibited by the conservative justices on the court.” In the dissent, she wrote the majority overruled past precedent “for no exceptional or special reason, but because it never liked the decision. ... Because, that is, it wanted to pick the winning side in what should be — and until now, has been — an energetic policy debate.”

— So what could be the next challenge? Harvard is defending its admissions policies against a lawsuit accusing the school of discriminating against Asian-American applicants — a legal challenge supported by Ed Blum, a prominent anti-affirmative action activist who also pushed the challenge to UT Austin. The Justice Department, meanwhile, has acknowledged it’s investigating Harvard admissions practices. (Blum did not respond to a request for comment.)

— Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, said she believes Blum is working to “tee up what looks to be another challenge in the Harvard case. … That is why we say everything is literally at stake when it comes to civil and human rights.”

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NAVIENT CEO MET WITH CFPB AS COMPANY SEEKS TO END LAWSUIT: The head of Navient earlier this month met with a top official at the Consumer Financial Protection Bureau as the student loan giant ramps up pressure to get the bureau to drop a lawsuit against it. Navient CEO Jack Remondi met several weeks ago with Eric Blankenstein, the top political appointee for the CFPB’s enforcement division and other career staffers, according to an official familiar with the meeting.

— The CFPB’s pending lawsuit against Navient accuses the company of breaking the law by cheating student loan borrowers. The company has repeatedly criticized the suit as unfair and without merit.

— The meeting between Navient and CFPB officials came less than four months after Remondi emailed Mick Mulvaney, the bureau’s acting director, to request an in-person meeting, according to documents obtained by POLITICO under a Freedom of Information Act request.

— In a three-page letter to Mulvaney, Remondi said that the CFPB’s lawsuit against his company was an example of the “politically-driven actions” by former Director Richard Cordray. He wrote that the bureau has “essentially no facts to back up the sensationalized charges leveled at Navient by Director Cordray.” Read more.

FIVE KEY TAKEAWAYS FROM LANDMARK JANUS RULING: The Supreme Court on Wednesday delivered a big blow to the nation’s teachers unions, ruling 5-4 that they and other public employee unions can no longer charge fees to nonmembers to cover their share of collective bargaining costs. While teachers unions have been bracing for the decision for years, it’s nonetheless expected to have major implications for education. Benjamin Wermund has five key takeaways from the decision here.

JUDGE TOSSES CALIFORNIA’S LEGAL CHALLENGE TO DEVOS PARTIAL LOAN FORGIVENESS POLICY: A federal judge on Wednesday dismissed California Attorney General Xavier Becerra’s lawsuit challenging Education Secretary Betsy DeVos’ policy of providing partial loan forgiveness to some defrauded students. U.S. Magistrate Judge Sallie Kim ruled that California lacked standing to bring the case, but she did not address the merits. Kim said the state could file an amended lawsuit within 30 days. Read the full ruling here.

— Kim is the same judge who is currently blocking DeVos from carrying out the Trump administration’s current partial loan forgiveness policy. That preliminary injunction was issued as part of a separate lawsuit challenging the policy that was brought by former Corinthian Colleges students who say they were defrauded by the now-defunct for-profit school.

TODAY — SENATE APPROPRIATIONS COMMITTEE VOTES ON EDUCATION FUNDING: The Senate Appropriations Committee today will take up a bipartisan fiscal 2019 spending bill that increases money for a wide range of education programs, including Pell grants. The measure, which would increase overall funding for the Education Department by $541 million to $71.4 billion, cleared a subcommittee earlier this week. The bill largely rejects many of the cuts that President Donald Trump’s budget had requested.

— The committee will also take up the Defense spending bill, which appropriators have said they may package together with the Labor-HHS-Education legislation on the Senate floor. The markup begins at 10:30 a.m. in room 106 of the Dirksen Senate Office Building. Listen live here.

REPORT ROLL CALL

— The Council for Higher Education Accreditation is out with a new report, “New Approaches to Judging Quality in Higher Education.”

MOVERS AND SHAKERS

— Mushtaq Gunja, who served as chief of staff to the undersecretary of education during the Obama administration, will start on Monday as vice president and chief of staff at the American Council on Education. Gunja most recently was an assistant dean at Georgetown Law.

SYLLABUS

— College savings plan accounts breached, $1.4 million taken: the Associated Press.

— University of Colorado considers taking the “liberal” out of “liberal education”: The Chronicle of Higher Education.

— Organized labor readies scorched earth assault on Illinois Republican Gov. Bruce Rauner: POLITICO.

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