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Sen. Cruz Demands Answers From DOJ About Highly Questionable Ethical Waiver Involving Racial Discrimination Case Before the Supreme Court

WASHINGTON, D.C. – U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, sent a letter to Department of Justice (DOJ) Attorney General Merrick Garland demanding transparency into an ethical waiver granted to Solicitor General Elizabeth Prelogar despite the clear conflict of interest that was created after DOJ decided to allow Prelogar to participate in an affirmative action lawsuit Students for Fair Admissions Inc. v. President & Fellows of Harvard College given the case involves allegations that her former client and employer, Harvard, has been sued for racial discrimination. The case is poised to have a potentially transformative effect on universities’ ability to consider race in admissions.

Ms. Prelogar attended law school at Harvard, consulted for them for nearly a decade, and taught a law school course as recently as fall 2020. On January 24, 2022, the Supreme Court agreed to hear the case. As Solicitor General, Ms. Prelogar will argue against her former employer on behalf of the government. Senator Cruz continues to hold the DOJ accountable for their questionable ethical practices and to demand answers from this administration.

After sending his oversight letter to DOJ, Senator Cruz issued the following statement:

“For too long many of America’s top universities and colleges have engaged in blatant discrimination against Asian Americans during the admissions process. It is unconscionable that the Biden administration would grant the Solicitor General a waiver that allows her to use the full power of the Department of Justice to go after college students and in order to defend the racially discriminatory practices of her former client and former employer. The clear takeaway from the decision to issue an ethics waiver in this case is that President Biden and Attorney General Merrick Garland are fully supportive of ongoing racial discrimination at America’s colleges and universities.”

In the letter, Sen. Cruz wrote: 

“Only three weeks after becoming Solicitor General, on November 18, 2021, Ms. Prelogar was granted an ethics waiver…allowing her to participate in a case pending before the Supreme Court—Students for Fair Admissions Inc. v. President & Fellows of Harvard College. Days before this waiver was granted, Harvard published a flattering piece related to Prelogar’s confirmation that touted how she would “carry on a Harvard Law School legacy.” This puff piece appears to have been written while Ms. Prelogar was awaiting word from DOJ in response to her conflict-of-interest waiver request. The timeline of these events gives rise to serious concerns about the appearance of impropriety and calls into question DOJ’s impartiality in not only this case but other cases as well.”


“Elizabeth Prelogar has a long-standing history with the defendant, Harvard College. She attended law school at Harvard. After law school, Ms. Prelogar consulted for Harvard College for nearly a decade—between 2011 and 2020. Additionally, she taught a course at Harvard Law during the fall of 2020. Prelogar’s public financial disclosures reveal she was paid $10,500 in 2019 and 2020 for these services.”


Despite these obvious conflicts, Ms. Prelogar sought an ethics waiver rather than simply recusing herself from the case. The reasoning provided to justify the waiver ultimately granted to Ms. Prelogar is vague, arbitrary, and broad enough to encompass nearly any conflict. In other words, the ethics waiver granted to Ms. Prelogar was not “granted in the narrowest [of] circumstances when necessary and in the public’s interest as the Biden Administration purports to require of its appointees, but, instead, amounts to a blank check.”

The full text of Senator Cruz’s letter can be found here.