The Trump administration will encourage the nation’s schoolsuperintendents and college presidents to adopt race-blind admissionsstandards, abandoning an Obama administration policy that called onuniversities to consider race as a factor in diversifying their campuses,Trump administration officials said.
The reversal would restore the policy set during President George W. Bush’sadministration, when officials told schools that it “strongly encouragesthe use of race-neutral methods” for admitting students to college orassigning them to elementary and secondary schools.
Last November, Attorney General Jeff Sessions asked the Justice Departmentto re-evaluate past policies that he believed pushed the department to actbeyond what the law, the Constitution and the Supreme Court had required,Devin M. O’Malley, a Justice Department spokesman said. As part of thatprocess, the Justice Department rescinded seven policy guidances from theEducation Department’s civil rights division on Tuesday.
“The executive branch cannot circumvent Congress or the courts by creatingguidance that goes beyond the law and — in some instances — stays on thebooks for decades,” said Devin M. O’Malley, a spokesman for the JusticeDepartment.
The Supreme Court has steadily narrowed the ways that schools can considerrace when trying to diversify their student bodies. But it has not bannedthe practice.
Now, affirmative action is at a crossroads. The Trump administration ismoving against any use of race as a measurement of diversity in education.
And the retirement of Justice Anthony M. Kennedy at the end of this monthwill leave the court without its swing vote on affirmative action and allowPresident Trump to nominate a justice opposed to a policy that for decadeshas tried to integrate elite educational institutions.
A highly anticipated case is pitting Harvard against Asian-American studentswho say one of the nation’s most prestigious institutions hassystematically excluded some Asian-American applicants to maintain slots forstudents of other races. That case is clearly aimed at the Supreme Court.
“The whole issue of using race in education is being looked at with a neweye in light of the fact that it’s not just white students beingdiscriminated against, but Asians and others as well,” said Roger Clegg,president and general counsel of the conservative Center for EqualOpportunity. “As the demographics of the country change, it becomes moreand more problematic.”The Obama administration believed that students benefit from beingsurrounded by diverse classmates, so in 2011, the administration offeredschools a potential road map to establishing affirmative action policiesthat could withstand legal scrutiny.
In a pair of policy guidance documents, the Education and Justicedepartments told elementary and secondary schools and college campuses touse “the compelling interests” established by the court to achievediversity. They concluded that the Supreme Court “has made clear such stepscan include taking account of the race of individual students in a narrowlytailored manner.”It reaffirmed its view in 2016 after a Supreme Court ruling that said thatschools could consider race as one factor among many.
In that case, Fisher v. University of Texas at Austin, a white woman claimedshe was denied admission because of her race, in part because theuniversity had a program that admitted significant numbers of minorities whoranked in the top 10 percent of their class.
“It remains an enduring challenge to our nation’s education system toreconcile the pursuit of diversity with the constitutional promise of equaltreatment and dignity,” Justice Kennedy wrote for the 4-3 majority.
The Trump administration’s plan would scrap the existing policies andencourage schools not to consider race at all. The new policy would not havethe force of law, but it amounts to the official view of the federalgovernment. School officials who keep their admissions policies intact woulddo so knowing that they could face a Justice Department investigation orlawsuit, or lose federal funding from the Education Department.
A senior Justice Department official pushed back against the idea that thesedecisions are not about rolling back protections for minorities. He saidthey are hewing the department closer to the letter of the law.
He noted that rolling back guidance is not the same thing as a change of law, so that the decision to rescind technically would not have a legal effecton how the government defends or challenges affirmative-action relatedissues.
The move comes at a moment when conservatives see an opportunity todismantle affirmative action.
Attorney General Jeff Sessions has said his prosecutors will investigate andsue universities over discriminatory admissions policies. And theconservative-backed lawsuit against Harvard is being pushed by the samegroup, the Project on Fair Representation, that pressed Fisher.
Anurima Bhargava, who headed civil rights enforcement in schools for theJustice Department under President Barack Obama and co-authored the Obama-era guidance, said that the policy withdrawal was timed for brief filings inthe Harvard litigation, due at the end of the month.
“This is a wholly political attack,” Ms. Bhargava said. “And our schoolsare the place where our communities come together, so our schools have tocontinue to promote diversity and address segregation, as the U.S.
Constitution demands.”“It’s part of a broader conservative effort to undermine affirmativeaction,” said Samuel Bagenstos, a University of Michigan law professor andformer Justice Department civil rights lawyer. “It’s something Republicanadministrations have been doing since Reagan.”On Friday, the Education Department began laying the groundwork for theguidance decision. It restored on its civil rights website the Bush-eraguidance, which had been shuttered by the Obama administration, signaling ashift of the Education Department’s stance on affirmative action, accordingto a person with knowledge of the decision.
A spokeswoman for the Education Department did not respond to repeatedinquiries for comment.
But the policy shift comes as no surprise to civil rights advocates, who sayit is only the latest measure by the Trump administration to dismantlepolicies aimed at protecting children and minority communities.
“There’s no reason to rethink or reconsider this, as the Supreme Court isthe highest court in the land and has spoken on this issue,” said CatherineLhamon, the former head of the department’s office for civil rights underObama. “The Supreme Court has been unequivocal about the value of diversityand the core of achieving it, because it reflects the America. To retreatfrom those principles is damaging to the fabric of our country and to ourstudents’ learning.”Education Secretary Betsy DeVos actually has seemed hesitant to wade in onthe fate of affirmative action policies that date back to a 57-year-oldexecutive order by President John F. Kennedy, who recognized systemic anddiscriminatory disadvantages for women and minorities.
The Education Department did not join the Justice Department in formallyintervening in Harvard’s litigation.
“I think this has been a question before the courts and the courts haveopined,” Ms. DeVos told The Associated Press. “I think the bottom linehere is that we want an environment where all students have an opportunity,an equal opportunity to get a great education.”But Ms. DeVos’s new head of civil rights may disagree.
Kenneth L. Marcus, who was confirmed last month in a party-line Senate vote, has been vocal in opposi ng affirmative action. Since his nomination ,dozens of civil rights groups have raised alarms about Mr. Marcus’ record.
Under Mr. Marcus’ leadership as founder and president of The Louis D.
Brandeis Center, a human rights organization that champions Jewish causes,the organization filed an amicus brief in 2012, the first time the SupremeCourt heard the Fisher v. University of Texas at Austin. In the brief, theorganization argued that “race conscious admission standards are unfair toindividuals, and unhealthy for society at large.”The organization argued that Asian-American students were particularlyvictimized by race “quotas,” that were once used to exclude Jewish people.
Conservative advocacy groups see the resurrection of the Bush-era guidanceby the Education Department as a promising sign. Mr. Clegg of the Center forEqual Opportunity, said the Justice Department preserving the Obama-eraguidance would be akin to “the F.B.I. issuing a document on how you canengage in racial profiling in a way where you won’t get caught.”As the implications for affirmative action for college admissions plays outin court, it is unclear what the decision holds for elementary and secondaryschools. New York City is embroiled in a debate about whether to changeentrance criteria — currently a single test — into its most elite andprestigious high schools to allow for small increases in black and Latinostudents.
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