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

By K. Joy Chin, Susan D. Friedfel, Monica H. Khetarpal and Julia L. Arcese
  • 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.

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