Pamela Karlan, former acting head of the Biden administration’s Civil Rights Division, may have transgressed federal ethics and conflict of interest laws.
Stanford University reportedly paid Karlan more than $1 million a year while she was a full-time Justice Department official making litigation decisions affecting Stanford. Karlan quietly resigned her position at the Justice Department this month after a Freedom of Information Act request put a spotlight on the payments.
Karlan had previously served in Obama’s Justice Department as a deputy in the same division, after which she rejoined the Stanford Law School faculty. By November 2020, she was part of the Biden transition team. Biden made Karlan acting head of the Civil Rights Division in early February 2021, a position she held until the Senate confirmed Assistant Attorney General Kristen Clarke that May. Thereafter, Karlan oversaw all Civil Rights Division activities as the principal deputy.
Normally, the principal deputy receives a salary of $183,100 per year. Justice Department ethics and conflict of interest rules prohibit a principal deputy from receiving large cash gifts and outside earned income in excess of 15% of that salary.
Government documents indicate that Karlan was on “detail” under the federal Intergovernmental Personnel Mobility Act from Stanford to the Justice Department and not actually employed at DOJ. This is supposed to justify Stanford paying her $1 million while she worked for the Justice Department.
However, this “detail” is highly unusual. Under the pertinent act, such arrangements are explicitly not to be made “to meet the personal interests of employees.”
So was there any purpose to this unusual arrangement other than to pay Karlan five times the government salary that any other person would have earned in the same role? Are there other such “details” presently within Biden’s Justice Department?
At the very time Stanford was making payments to Karlan, she was responsible for litigation decisions benefiting Stanford. The Trump Justice Department, in which I served in the same positions Karlan later held, took several important steps to combat racial discrimination in higher education. We argued on behalf of Asian students suffering from discrimination by Harvard University in a case the Supreme Court will hear this fall: Students for Fair Admissions v. Harvard. We also sued Yale University for illegally discriminating against Asian students.
After taking office in January 2021, the Biden Civil Rights Division sought to undo our work, quickly dismissing our lawsuit against Yale. In December 2021, while being paid by Stanford, Karlan personally signed a brief on behalf of the government, asking the Supreme Court not to hear the Harvard case and to allow colleges to continue racial discrimination without any practical limits.
Stanford has a clear interest in preserving Grutter v. Bollinger, the 2003 case in which the justices upheld the use of race in college admissions. Indeed, Stanford explicitly asked the court to rule that way at the time in an amicus brief. Meanwhile, then-Stanford law professor Karlan separately filed a brief on behalf of the Association of American Law Schools in support of race-based admissions.
The “Stanford Report,” an official communications organ of Stanford University, wrote of Grutter at that time: “Stanford’s admission practices have been reinforced.” Stanford’s president said he was “very pleased.” Professor Karlan was quoted stating, “What this does is reassure Stanford that its own affirmative action policies will remain legal.”
Stanford’s payments to Karlan two decades later as she worked for the university’s interests and against those of Asian students from inside the Justice Department are particularly troubling in this context.
John Daukas was the acting assistant attorney general for the Civil Rights Division of the Department of Justice.
