When Kuhl served as Special Assistant to the Attorney General, she was one of the architects of the Reagan Administration’s decision to reverse long-standing government policy that denied charitable organization tax-exempt status to private institutions that practice race discrimination. See, e.g., Lincoln Caplan, The Tenth Justice, at 55 (1987) (hereafter “The Tenth Justice”). This extraordinary reversal of policy was taken in connection with Bob Jones University, whose tax-exempt status as a “charitable” institution had been revoked by the IRS because of its racially discriminatory practices. The university filed suit, seeking to have its tax-exempt status restored. The United States Court of Appeals for the Fourth Circuit ruled against Bob Jones, holding that in order to be a “charitable” institution, a school must not be “contrary to public policy.” According to the court, Bob Jones University’s “racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination and, more specifically, the government policy against subsidizing racial discrimination in education, public or private.” Bob Jones University v. United States, 639 F.2d 147, 151 (4th Cir. 1980). The Solicitor General’s Office, through Acting Solicitor General Lawrence Wallace, prepared to defend the IRS ruling in the Supreme Court. The Tenth Justice, at 53-54. 12
At that point, then-Congressman Trent Lott sent letters to the President and a number of government officials, including the Attorney General, urging the Reagan Administration to change course and not defend the IRS policy. The Tenth Justice, at 54. Lott was supported in his efforts by Senator Strom Thurmond, “who sat on the board of trustees of Bob Jones University.” The Tenth Justice, at 54-55. Kuhl and several others within the Department of Justice — characterized as “[a] band of young zealots” — then “pressed for the legal switch to give Bob Jones its tax exemption.” Anthony Lewis, “Abroad at Home; The Court Says No,” New York Times A27 (May 26, 1983). See also The Tenth Justice, at 55 (identifying Kuhl as one of the several individuals within the Department, including Civil Rights Division Chief William Bradford Reynolds, who became known as the “Bob Jones team” and “rallied to reverse” the government’s position).
Indeed, Kuhl and Charles Cooper (Special Assistant to Assistant Attorney General Reynolds) co-authored a 40-page memorandum to Reynolds strenuously arguing that “the [IRS] Commissioner’s ruling denying tax-exempt status to racially discriminatory private educational institutions is supported by neither the language nor the legislative history of Section 501(c)(3)” and that the IRS should therefore “reverse its position” in the case and “accord tax-exempt status” to Bob Jones. 13 Reynolds accepted the memorandum and forwarded it to Attorney General William French Smith. 14 Kuhl had also sent a handwritten note to Ken Starr, then Counselor to the Attorney General, forwarding “relevant statements in the Republican platform and Reagan/Bush position papers.” 15 According to The Tenth Justice, the “Bob Jones team” excluded Acting Solicitor General Wallace from a series of meetings about the case, and ultimately convinced the Attorney General “to overrule” Wallace. The Tenth Justice, at 56. 16
The government’s extraordinary reversal of course in the midst of the case prompted the Supreme Court to ask a private attorney, William T. Coleman, Jr., to file an amicus curiae brief defending the appellate rulings upholding the IRS policy. See Bob Jones University v. United States, 456 U.S. 922 (Apr. 19, 1982). Trent Lott filed his own amicus brief urging the Court to rule in favor of Bob Jones. Brief of Congressman Trent Lott Amicus Curiae, Bob Jones University v. United States (Nov. 27, 1981).
In addition, the government’s radical shift in civil rights policy prompted more than 200 attorneys and other staff in the Civil Rights Division of the Department of Justice to sign a letter of protest to Reynolds. 17 The letter stated that giving tax exemptions to racially discriminatory schools “violates existing federal civil rights law, as expressed in the Constitution, acts of Congress, and federal court interpretations thereof.” 18
The Supreme Court agreed. In a resounding repudiation of the position that Kuhl had championed, the Court ruled 8-1 that Bob Jones was not entitled to tax-exempt status. Bob Jones University v. United States, 461 U.S. 574 (1983). In an opinion by Chief Justice Warren Burger, the Court held that “[a]n unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court’s view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.” 461 U.S. at 593. According to the Court, “[i]t would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which ‘[exert] a pervasive influence on the entire educational process.’” Id. at 595 (internal citation omitted). 19
Here, as in Thornburgh, the record shows that Kuhl was not merely an attorney advocating a position on behalf of her client. She in fact helped determine what that position would be, a position that was completely out of the mainstream and strongly repudiated by the Supreme Court. Indeed, Anthony Lewis, writing in the New York Times immediately after the Supreme Court’s ruling, observed that the Court had “demolished the legal arguments made by the Reagan lawyers,” and wondered, “How could any President be given such incompetent legal advice? How could lawyers for the U.S. Government stray so far from the mainstream of the country’s understanding on the racial issue? How could a President at this stage in our history play with the issue for political reasons?” Anthony Lewis, “Abroad at Home; The Court Says No,” New York Times A27 (May 26, 1983) (emphasis added).
One of the written questions that Senator Boxer submitted to Kuhl in 2001 dealt specifically with the Bob Jones case. In particular, Senator Boxer asked Kuhl, “What were the circumstances surrounding this case and the details of your involvement? Why did you disagree with the apparently overwhelming and deeply held view of others in the Department?” 20
In Kuhl’s answer as to “the details” of her involvement in the Bob Jones case, she did not mention her December 8, 1981 note to Ken Starr, let alone the 40-page memorandum to William Bradford Reynolds that she co-authored with Charles Cooper urging that the IRS “should reverse its position” and “accord tax-exempt status” to Bob Jones University. 21 Rather, Kuhl stated in her answer, “I conducted legal research on the issues involved in the case, primarily on the issue of the effect of legislative inaction subsequent to the IRS’s adoption of the policy of denying tax exempt status to educational institutions that discriminated on the basis of race.” 22 Kuhl may well have conducted such legal research. But the Kuhl/Cooper memorandum, omitted from her answer to Senator Boxer, is not a memorandum neutrally presenting the results of legal research concerning the issues involved in the case or the various arguments that might be made, pro and con, regarding the authority of the IRS to deny tax exemptions to racially discriminatory private schools. To the contrary, it is an advocacy piece taking the express position, as noted above, that the IRS “should” reverse its policy and accord Bob Jones tax exempt status. 23
Although in responding to Senator Boxer’s question Kuhl did not state specifically why she “disagree[d] with the apparently overwhelming and deeply held views of others in the Department,” Kuhl volunteered that she now
believe[s] the government’s decision to reverse position in the Bob Jones case was wrong. The government’s decision was wrong in part because it appeared insensitive to minorities, regardless of the nondiscriminatory motives of those involved in the decision. The government’s decision also was wrong from a legal standpoint, because the IRS, the Justice Department’s client, had a defensible legal position, and the Justice Department should have defended that position in line with its traditional role as lawyer for executive branch agencies. 24
Nowhere does the Kuhl/Cooper memorandum even suggest that the IRS “had a defensible legal position,” let alone that the Department of Justice should defend it. To the contrary, the memorandum concludes by stating that “[f]rom the foregoing, it is clear that the Service’s interpretation of Section 501(c)(3) of the 1954 Code is at odds with the statute’s language and legislative history . . . .” 25
Perhaps most significant, Kuhl did not say in her answer to Senator Boxer that the decision to reverse policy on Bob Jones was wrong because it was just plain wrong, because, as the Supreme Court held, institutions that practice race discrimination cannot be considered “charitable” by the IRS and should not be subsidized by the American public through tax exemptions. Indeed, Professor Laurence Tribe has written that he finds this explanation by Kuhl of why she now believes the government’s decision to reverse its policy in the Bob Jones case was wrong “to fall surprisingly short of a straightforward endorsement of the legal correctness of the IRS policy that the Supreme Court upheld in its landmark Bob Jones ruling.” 26
As Deputy Solicitor General, Kuhl was also part of the Reagan Administration’s effort to restrict the remedies that courts can order in the case of employment-related discrimination in violation of Title VII, even including cases in which the discrimination has been intentional and long-standing, as it unquestionably was in Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421 (1986). In that case, Kuhl co-authored, along with Solicitor General Fried, Assistant Attorney General William Bradford Reynolds, and others, a brief on behalf of the EEOC advocating the extreme theory that relief in Title VII cases can be granted only to identifiable victims of discrimination.
The case involved a union that had been “found guilty of engaging in a pattern and practice of discrimination against black and Hispanic individuals” in violation of Title VII. 478 U.S. at 426. For years, the union “had denied qualified nonwhites access to union membership through a variety of discriminatory practices.” 478 U.S. at 429. The union had been ordered by a federal district court to end its discriminatory practices “and to admit a certain percentage of nonwhites to union membership” by a specified date. 478 U.S. at 426. The union did not comply and was twice held in civil contempt for disobeying the district court’s orders. The principal issue before the Supreme Court was whether the remedial provision of Title VII “empowers a district court to order race-conscious relief that may benefit individuals who are not identified victims of unlawful discrimination.” Id.
The brief that Kuhl co-authored recognized the union’s long-standing and egregious conduct, calling it “patently contumacious.” 27 Nonetheless, it urged the Supreme Court to overturn the membership goal imposed by the lower courts because, in the government’s view, Title VII’s remedial provision prohibits a court from “awarding relief such as employment, union membership, or other preferences to non-victims on the basis of race, sex, national origin, or religion.” 28
The Court in a 5-4 ruling rejected the government’s efforts to confine Title VII relief in all instances to persons who can be identified “as the actual victims of unlawful discrimination.” 478 U.S. at 444. According to Justice Brennan, in an opinion for a four-justice plurality, Title VII “does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination.” 478 U.S. at 445 (emphasis added). 29 As Justice Brennan explained:
Where an employer or union has engaged in particularly longstanding or egregious discrimination, an injunction simply reiterating Title VII’s prohibition against discrimination will often prove useless and will only result in endless enforcement litigation. In such cases, requiring recalcitrant employers or unions to hire and to admit qualified minorities roughly in proportion to the number of qualified minorities in the work force may be the only effective way to ensure the full enjoyment of the rights protected by Title VII.
Id. at 448-49 (emphasis added). In a concurring opinion, Justice Powell agreed with the plurality that Title VII’s remedial provision “does not limit a court in all cases to granting relief only to actual victims of discrimination.” Id. at 483. Kuhl’s argument to the contrary would have significantly limited the ability of the courts to provide effective remedies for discrimination.