Schools urged to ignore race in admissions

White House reverses Obama administration on affirmative action.

The White House

WASHINGTON — will encourage the nation’s school superintendents and college presidents to adopt race-blind admissions standards, abandoning an Obama administration policy that called on universities to consider race as a factor in diversifying their campuses.

Last November, Attorney General Jeff Sessions asked the Justice Department to re-evaluate past policies that he believed pushed the department to act beyond what the law, the Constitution and the Supreme Court had required, Devin M. O’Malley, a Justice Department spokesman said. As part of that process, the Justice Department rescinded seven policy guidances from the Education Department’s civil rights division Tuesday.

“The executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law and — in some instances — stays on the books for decades,” O’Malley said.

The Supreme Court has steadily narrowed the ways that schools can consider race when trying to diversify their student bodies. But it has not banned the practice.

Now, affirmative action is at a crossroads. The Trump administration is moving against any use of race as a measurement of diversity in education. And the retirement of Justice Anthony Kennedy at the end of this month will leave the court without its swing vote on affirmative action and allow President Donald Trump to nominate a justice opposed to a policy that for decades has tried to integrate elite educational institutions.

A highly anticipated case is pitting Harvard against Asian-American students who say one of the nation’s most prestigious institutions has systematically excluded some Asian-American applicants to maintain slots for students 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 new eye in light of the fact that it’s not just white students being discriminated against, but Asians and others as well,” said Roger Clegg, president and general counsel of the conservative Center for Equal Opportunity. “As the demographics of the country change, it becomes more and more problematic.”

The Obama administration believed that students benefit from being surrounded by diverse classmates, so in 2011 the administration offered schools a potential road map to establishing affirmative action policies that could withstand legal scrutiny. The guidance was controversial at the time that it was issued for its far-reaching interpretation of the law. Justice officials said that pages of hypothetical scenarios offered in the guidance were particularly problematic as they clearly bent the law to specific policy preferences.

In a pair of policy guidance documents, the Obama Education and Justice departments told elementary and secondary schools and college campuses to use “the compelling interests” established by the court to achieve diversity. They concluded that the Supreme Court “has made clear such steps can include taking account of the race of individual students in a narrowly tailored manner.”

The administration’s decisions Tuesday brought government policy back to the George W. Bush administration guidances. The Trump administration did not formally reissue Bush-era guidance on race-based admissions, but, in recent days, officials did repost a Bush administration affirmative action policy document online.

That document states, “The Department of Education strongly encourages the use of race-neutral methods for assigning students to elementary and secondary schools.”

For the past several years, that document had been replaced by a note declaring that the policy had been withdrawn. The Bush policy is now published in full, with no note attached. It reaffirmed its view in 2016 after a Supreme Court ruling that said that schools could consider race as one factor among many.

In that case, Fisher v. University of Texas at Austin, a white woman claimed she was denied admission because of her race, in part because the university had a program that admitted significant numbers of minorities who ranked in the top 10 percent of their class.

“It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,” Kennedy wrote for the 4-3 majority.

A senior Justice Department official pushed back against the idea that these decisions are about rolling back protections for minorities. He said they 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 effect on how the government defends or challenges affirmative-action related issues.

Sessions has said his prosecutors will investigate and sue universities over discriminatory admissions policies. And the conservative-backed lawsuit against Harvard is being pushed by the same group, the Project on Fair Representation, that pressed Fisher.

Anurima Bhargava, who headed civil rights enforcement in schools for the Justice Department under President Barack Obama and co-authored the Obama-era guidance, said that the policy withdrawal was timed for brief filings in the Harvard litigation, due at the end of the month.

“This is a wholly political attack,” Bhargava said. “And our schools are the place where our communities come together, so our schools have to continue to promote diversity and address segregation, as the U.S. Constitution demands.”

“It’s part of a broader conservative effort to undermine affirmative action,” said Samuel Bagenstos, a University of Michigan law professor and former Justice Department civil rights lawyer. “It’s something Republican administrations have been doing since Reagan.”

On Friday, the Education Department began laying the groundwork for the guidance decision. It restored on its civil rights website the Bush-era guidance, which had been shuttered by the Obama administration, signaling a shift of the Education Department’s stance on affirmative action, according to a person with knowledge of the decision.

A spokeswoman for the Education Department did not respond to repeated inquiries for comment.