Race-based ad­mis­sions un­der re­view

The Jus­tice Depart­ment in­di­cates it’s tak­ing a crit­i­cal look at col­leges’ use of af­fir­ma­tive action.

Los Angeles Times - - THE NATION - By Kur­tis Lee and Joy Res­movits kur­tis.lee@la­times.com joy.res­movits@la­times.com Times staff writer Joseph Tan­fani in Wash­ing­ton con­trib­uted to this re­port.

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.

Eric Gay As­so­ci­ated Press

THE UNIVER­SITY of Texas at Austin was at the cen­ter of the Supreme Court’s rul­ing last year in Fisher vs. Univer­sity of Texas, which up­held us­ing race as a fac­tor in con­sid­er­ing ap­pli­cants.

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