Led by President Donald Trump and Attorney General Jeff Sessions, the federal government has launched a frontal assault against the last vestiges of limited, race-sensitive affirmative action programs in college admissions. According to an internal announcement leaked last week to the New York Times, the Justice Department is looking for internal Civil Rights Division lawyers to work on
intentional race-based discrimination in college and university admissions.
The announcement stated the project would be handled by the Division’s front office and essentially staffed by Trump’s political appointees, rather than by the Educational Opportunities Section of career civil-rights lawyers who normally address cases related to education. Upon further press inquiry, Justice Department spokesperson, Sarah Isgur Flores, said the purpose of the project was to “investigate one admissions complaint” filed on behalf of Asian-Americans, but the announcement was met with skepticism by career civil rights attorneys. Furthermore, the announcement stated that multiple lawyers were needed to work on “investigations” and requested that they submit resumes by August 9.
Trump and Sessions are playing on some of the public misunderstanding and confusion about affirmative action admissions programs in higher education. These programs are voluntary and represent the efforts of colleges and universities to create more diverse and inclusive campuses as well as to expand access and opportunity for historically underrepresented groups. These programs have been thoroughly vetted and tested by a conservative Supreme Court that has established a number of significant hurdles for colleges and universities in a series of cases culminating in Fisher v. University of Texas last year.
The new initiative by Trump and Sessions is deeply troubling for the following reasons:
1. This initiative seeks to eliminate holistic admissions review processes that would enhance campus diversity and yield the educational benefits for all students that the Supreme Court already has upheld as a “compelling state interest.”
2. It splinters minority groups by using Asian Americans as a proxy and pretext to overturn limited race-sensitive admissions programs. As Nancy Leong points out, “By framing opposition to affirmative action as concern for Asian Americans, opponents of affirmative action can protect the existing racial hierarchy — with white people at the top — while disguising their efforts as race-neutral rather than racially motivated.”
3. It unites the federal government’s legal strategy with the private legal efforts of wealthy, white elites who repeatedly have challenged race-conscious college admissions programs.
4. It does not address preference programs that favor alumni children and wealthy donors, groups that tend to be heavily and disproportionately white. Donald Trump himself is described as having benefited from the connections of his wealthy father in his transfer from Fordham University to the Wharton School as an undergraduate economics major.
Recall that just last summer the Supreme Court upheld the narrowly-tailored holistic admissions plan of the University of Texas at Austin by a vote of 4-3 in the appeal of Abigail Fisher in the Fisher v University of Texas at Austin case. Edward Blum, a wealthy white conservative entrepreneur and head of the one-person organization, the “Project on Fair Representation” founded in 2005, personally recruited Abigail Fisher, the daughter of an old friend, for this landmark lawsuit.
As Stephanie Mencimer points out, Blum is the brains behind the “effort to get the Supreme Court to rethink civil rights.” Blum has engineered at least a dozen lawsuits, four of which have made it to the Supreme Court, challenging what he perceives to be race- and ethnicity-based laws in voting, education, and contracting Blum guided the 2009 lawsuit, Shelby County v. Holder, that successfully challenged provisions of the Voting Rights Act and opened the door to voting I.D. requirements in Southern states. He has attempted to recruit Asian American plaintiffs in his suit against Harvard University, alleging that Harvard has held Asian American applicants to higher standards than other applicant. He has also filed suit against the University of North Carolina at Chapel Hill for its own statements relating to black enrollment. Not content with the outcome in Fisher, Blum has also now filed a new lawsuit alleging that the holistic review process at UT-Austin subverts state law and will be pursuing this suit with the conservative Texas Supreme Court.
In Affirmative Action at a Crossroads: Fisher and Forward, Alvin Evans and I chart the progressive change in the interpretation of the Equal Protection Clause of the Fourteenth Amendment by the Supreme Court from protecting minority rights to protecting majority interests in college admissions programs. The appointment of conservative judge Neil Gorsuch will only further solidify this direction. As Kristin Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law noted, Jeff Sessions
has a clear record of hostility to racial diversity. [She added] We will not stand by idly as the administration continue to hijack and obstruct this Division’s core civil rights mission.
In the view of leading scholar Carol Anderson, these new mostly white (male) assaults on affirmative action in college admissions build on white racial resentment and seek to punish minority achievement and aspiration. The attack on limited and legally compliant affirmative action programs designed to enhance racial diversity on college campuses is but another salvo in the (extraordinarily white) Trump administration’s clever strategy of pitting minority groups against each other in the effort to perpetuate division and thwart the inclusive goals of our pluralistic democracy.