Search form

Affirmative Action in College Admissions to Become a Justice Department Priority?

By K. Joy Chin, Susan D. Friedfel and Monica H. Khetarpal
  • August 16, 2017

The Trump Administration is preparing to focus on affirmative action in college admissions, according to The New York Times, which reportedly obtained an internal announcement to the Department of Justice (DOJ) Civil Rights Division (CRD).

The announcement, The Times said, directs the Division to redirect resources to investigate and potentially sue universities over “affirmative action admissions policies deemed to discriminate against white applicants.”

Internal Announcement to DOJ CRD

As reported by The Times, the document seeks out DOJ lawyers to work “for a new project on ‘investigations and possible litigation related to intentional race-based discrimination in college and university admissions.’” The project would be handled by the CRD’s “front office,” comprised of Trump Administration appointees, rather than the Educational Opportunities Section, staffed by long-term civil servants, which historically has handled work related to schools and universities.

The document does not specify any particular individual or group of individuals that may have suffered discrimination because of affirmative action college admissions policies. Nevertheless, The Times reported, supporters and critics agree the project is targeting admissions programs designed to benefit historically disadvantaged racial minority groups.

DOJ Document a “Personnel Posting”

After The Times story broke, a DOJ official responded that “the notice was a ‘personnel posting’ and not a new policy or program.”

DOJ spokesperson Sarah Isgur Flores later denied the accuracy of media reports stating that the internal announcement related to one particular case of discrimination from the Obama Administration, not university admissions in general. According to the statement issued by Flores, the posting sought volunteers to investigate an administrative complaint of discrimination filed in 2015 alleging racial discrimination against Asian Americans in a university’s admissions policy and practices. Flores said the DOJ “has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general.” She continued, “The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”

Department of Education on Affirmative Action in College Admissions

The Education Department declined to comment on the DOJ document at the time. In a subsequent interview with the Associated Press, Betsy DeVos, U.S. Secretary of Education, said the Education Department had not been involved with the DOJ internal announcement. Asked whether she favored affirmative action programs in college admissions, DeVos said her “personal goal” and the goal of the Department was “to see all students have the opportunity to succeed, no matter where they come from, no matter their family background, no matter their family income.” As to whether race should play a role in college admissions, DeVos believes in changing “the dynamic for kids on the K-12 system that for all too many kids who are minority students is failing them. It is not fair to think that when students transit through a K-12 system that is not preparing them for beyond, that somehow we are going to waive a magic wand and things are going to be perfect for them at the higher-ed level. So I’ve always said: What we should really be talking about is what are we doing to ensure that every single child no matter their family income, no matter their racial background, no matter their zip code has equal opportunities to access a quality education. We have seen decades of top-down mandated approaches that protect a system at the expense of individual students. I am for individual students. I want each of them to have opportunity to go to a school that works for them.”

What Should Universities Do Now?

While the extent of the DOJ project is not yet known, it may signal the DOJ’s shifting priorities under the Trump Administration.

In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016), a 4-3 majority of the U.S. Supreme Court found the University’s narrowly tailored race-conscious admissions program constitutional. The Court in its opinion explained, “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.” Therefore, not all affirmative action programs necessarily would pass muster under the current legal standard. The extent to which a program meets the standard is subject to change as demographics and other factors change.

Accordingly, universities should continue to review their established admission policies for compliance with the law.

Jackson Lewis will keep you informed on significant developments. Please contact a Jackson Lewis attorney with any questions.

©2017 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

August 23, 2019

Title IX Alert Fall 2019

August 23, 2019

To assist collegiate sports administrators in assessing emerging Title IX issues, we are pleased to provide the fall 2019 issue of the Title IX Alert. This publication highlights topical issues such as proposed regulations, coaching obligations, and prominent court cases, among others. This issue covers the following topics:... Read More

August 16, 2019

Circuit Split on Student’s Due Process Right to Cross-Examination in Title IX Matters

August 16, 2019

Constitutional due process does not mean a student accused of assault has the right to directly cross-examine his accuser in adjudications under Title IX of the Education Amendments of 1972 at state institutions of higher education, the federal appeals court in Boston has held. Haidak v. University of Massachusetts-Amherst, No. 18-1248 (... Read More

July 10, 2019

2019: The Mid-Year Outlook for Employers

July 10, 2019

The first six months of 2019 have proven to be busy, challenging professionals in the labor and employment communities to keep up with a number of newly enacted laws and regulations. In the 2019: Mid-Year Outlook for Employers, Jackson Lewis attorneys provide a snapshot of activity from the first half of the year as well as a preview of... Read More