Race-based admissions under review
The Justice Department indicates it’s taking a critical look at colleges’ use of affirmative action.
The Justice Department signaled Wednesday that it would examine “race-based discrimination” in college admissions, alarming some civil rights advocates who fear that the Trump administration is trying to roll back affirmative action policies.
In an internal job posting, the department’s Civil Rights Division said it was seeking lawyers willing to work on an investigation and potential litigation involving racebased admissions policies.
Although Justice Department officials said the move does not herald a shift toward attacking race-conscious admissions policies, civil rights advocates and legal experts said the investment of resources could have a ripple effect that hurts minority students hoping to enroll in college.
In addition, they say, the effort by Atty. Gen. Jeff Sessions, who as an Alabama senator voiced opposition to affirmative action, is another stark contrast between the priorities of his Justice Department and those of former Atty. Gen. Eric H. Holder Jr., who served under President Obama.
“Whenever there’s a credible allegation of discrimination on the basis of race, the department will look into it,” said a Justice Department official, who spoke on condition of anonymity because of the department’s policy to not discuss personnel matters.
The Justice Department’s job posting was first reported late Tuesday by the New York Times. At her regular briefing on Wednesday, White House Press Secretary Sarah Huckabee Sanders acknowledged that the newspaper had obtained a “leaked internal personnel posting,” but declined to comment on it, except to say: “The Department of Justice will always review credible allegations of discrimination on the basis of any race.”
Hours later, the Justice Department issued a statement saying the posting was in response to a complaint filed in 2015 alleging discrimination against Asian Americans in an unidentified university’s admissions practices.
In recent years, the Supreme Court has mostly ruled favorably on affirmative action in college admissions, although it has upheld some restrictions at the state level that have significantly chipped away at the practice.
Last year, in a 4-3 decision, the Supreme Court upheld the use of race as one factor in evaluating college applicants. The case, Fisher vs. University of Texas, centered on Abigail Fisher, a white Texas resident, who filed suit after she was denied admission there. She had argued that the university’s consideration of race in admissions discriminated against her because she was white.
In cases in 2003 and 1978, the Supreme Court ruled that race could be among several factors weighed when admitting students.
The 1978 case, Regents of University of California vs. Bakke, was a major turning point, said Lee Bollinger, president of Columbia University, who argued in favor of affirmative action before the Supreme Court in 2003 in cases involving the University of Michigan.
In the Bakke case, which involved a medical school applicant to UC Davis, Justice Lewis F. Powell Jr. wrote that university leaders could not use affirmative action to correct social injustice, but could as a way to achieve a diverse student body which would contribute to a “robust exchange of ideas.”
“It severed a major reason for using the policy,” Bollinger said.
The job posting at the Justice Department caused concerns among civil rights groups that fear the Trump administration will seek to investigate claims similar to Fisher’s.
Jessica A. Levinson, a professor at Loyola Law School in Los Angeles, said the Justice Department could indirectly intimidate universities from using race as a factor in admissions.
“This easily could have a chilling effect, as universities would not want to be subject to being sued or investigated,” Levinson said.
Derrick Johnson, interim president and chief executive of the National Assn. for the Advancement of Colored People, said in a statement that the Justice Department “seems laser-focused on achieving rights and privileges for ‘just-us,’ totally excluding people of color.”
“Affirmative action was not created as a way for African-Americans, Latinos, or Asian-Americans to get an unfair advantage over their white peers,” Johnson said. “It’s a mechanism to level the playing field and create equal opportunity for people of color following decades of oppression. We should promote and foster efforts to promote diversity on college and university campuses not hinder it.”
And Matt Cregor, education projects director at the Lawyers’ Committee for Civil Rights and Economic Justice, said, “If they want to go after affirmative action, they should go after legacy.”
Legacy admissions policies, which favor the children of alumni, ultimately exclude minorities from pipelines to leadership jobs, said USC Rossier School of Education professor Estela Bensimon.
“Criteria have changed over time, depending on who was being advantaged,” she said. “When Jews were outscoring non-Jewish white students, the criteria for admission at elite universities changed to include ‘character.’”
Legacy is typically an issue at private schools, which have generally been outside the scope of efforts to rein in affirmative action.
While the courts have affirmed the use of affirmative action in higher education, eight states, including California and Arizona, have barred its use. The state bans generally arose from ballot initiatives or state legislators.
In 1997, Sessions told the Senate Judiciary Committee that affirmative action was a “very, very difficult subject.”
“I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race,” he said at the time.