Affirmative action moves could signal SCOTUS changes
WASHINGTON — The Trump administration’s move urging colleges to drop affirmative action measures that promote class diversity could be a precursor of a similar change at the U.S. Supreme Court, as the president mulls a replacement for retiring Justice Anthony Kennedy.
Yesterday the Justice Department rescinded 24 policy documents adopted during the Obama administration, including Department of Education guidance that had encouraged colleges and universities to take steps to promote diversity in admissions, using race as one of a number of considerations.
Such an approach survived scrutiny by the U.S. Supreme Court in 2016, in a decision written by Kennedy allowing the use of race in a limited way among a host of factors. In that case, the Obama administration urged the court to uphold the affirmative action measures.
But the replacement of Kennedy, who served as the swing vote in that 5-4 ruling siding with the court’s more liberal justices, means the justices could soon be presented with a Trump administration-supported effort to strike down all affirmative action programs as unconstitutional after the second Trump-appointed justice is installed.
“The Department of Justice appears ready to tee up a challenge to lawful race conscious admissions or affirmative action programs,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights.
U.S. Attorney General Jeff Sessions called the rescissions an effort to rid government agencies of policies that are “unnecessary, outdated, inconsistent with existing law, or otherwise improper.”
The change also comes as an challenge to Harvard’s admission policies makes its way to the high court. That case was brought by Asian-American students, backed by anti-affirmative action group Students for Fair Admissions, that argues the school unfairly limits how many Asian students are admitted.
Ed Blum, the group’s president, said the organization “welcomes any governmental actions that will eliminate racial classifications and preferences in college admissions.”
But Kristen Clarke, head of the Lawyers’ Committee for Civil Rights Under Law, called the Justice Department’s move “wholly consistent with the administration’s unwavering hostility towards diversity in our schools,” and said it would continue to fight efforts to outlaw affirmative action in court.
“The rescission of this guidance does not overrule forty years of precedent that affirms the constitutionality of a university’s limited use of race in college admissions,” Clarke said.