By Todd A. Cox, Policy Director at the NAACP Legal Defense and Educational Fund, Inc.
Given the sexual assault allegations that dominated Justice Brett Kavanaugh’s confirmation hearings, it’s not surprising that the conversation surrounding the woman nominated to replace him on the D.C. Circuit Court of Appeals has zeroed in on her alarming college writings about date rape. Neomi Rao’s op-eds from her time at Yale have rightfully drawn condemnation for their offensive takes, like when she suggested that, “a good way to avoid a potential date rape is to stay reasonably sober.”
As a lifelong civil rights advocate, I’m deeply disturbed by such comments (and her inexplicable defense of this victim blaming rhetoric at her confirmation hearings), but I’m also outraged by some of Rao’s work on another topic that has garnered less attention: opposing affirmative action and racial justice.
In an editorial for the Yale Free Press in 1995, Rao wrote that, “Yale has dedicated itself to a relatively firm meritocracy, which drops its standards only for a few minorities, some legacies and a football player here or there.” As a junior, Rao co-authored an editorial entitled, “Separate, But More Than Equal,” arguing against what she deemed, “special treatment for minority students.”
These inflammatory writings evince an animus towards civil rights and the rule of law that should disqualify any nominee from sitting on the federal bench. Rao failed to adequately explain or disown these incendiary statements during her confirmation hearing, and nothing in her record suggests she has disavowed these views. But my opposition isn’t just limited to editorials Rao penned decades ago. I’m even more concerned by her career spent turning these despicable beliefs into policy.
As the Office of Information and Regulatory Affairs Administrator, Rao is charged with leading the Trump Administration’s efforts to undo crucial protections for communities of color. For example, she spearheaded the effort to eliminate the disparate impact standard at the Department of Housing and Urban Development. But Rao isn’t just trying to end reliance on this method of proving discrimination in housing contexts, she’s helping to lead an administration-wide push to end the use of this crucial tool in other areas of the law too, including in policing and education. This attempt doesn’t just run contrary to decades of U.S. government practice, but also Supreme Court precedent.
And that’s not the only bit of Supreme Court precedent of which Rao seems weary. At her confirmation hearing, she joined a growing list of this administration’s judicial nominees who are unwilling to offer support for the Court’s unanimous decision in Brown v. Board of Education.
That watershed ruling – arguably the most important civil rights decision in history – changed the meaning of equality in American law and, in the process, altered the lives of all people in this country, regardless of race, gender, religion, or disability or immigration status. Though years removed from her days at Yale, this refusal reveals that Rao is just as eager to eschew the rule of law and fundamental principles of equality as an attorney as she was a student.
Explicit support for the Brown decision must remain a judicial redline. Regardless of whether Rao is ever called upon to rule on the legality of this essential precedent, she will hear cases on voting rights, employment discrimination, affirmative action, and other civil rights priorities that rely on the principles of equality articulated in Brown. Understanding and embracing the Brown decision is critical given the need to apply that same foundational conception of equality to other areas of the law where it is painfully needed.
Indeed, Rao’s failure to affirm this landmark decision is a severe flouting of democratic norms and a judicial dog whistle, signaling that Brown and its far-reaching legacy are potentially at risk.
We’ve seen no shortage of unqualified judicial nominees during the Trump Administration, and Rao’s dearth of federal or state court trial experience makes her no exception. We also have seen many nominees hostile to civil rights, principles of quality, and the rule of law, and Rao fits into this pattern too. When coupled with her retrograde views on race, sexual assault, and marriage equality, we get a nominee poised to weaponize the federal judiciary against well-established norms and precedent. No litigant with a civil rights claim before her could trust she would fairly and impartially provide equal justice under the law.
Her college writing foreshadowed the type of anti-civil rights advocate she would go on to become. She showed us who she was the first time, now it’s incumbent upon us not to miss what her ensuing career portends for the future of equality on the D.C. Circuit Court of Appeals.