The Trump administration Tuesday discouraged the use of race in college admissions and public school enrollment by revoking federal guidance on affirmative action from the Obama era.
The announcement is the latest step in a decades-long debate over of the use of race in admissions, a tactic for many schools seeking to diversify and overcome the legacy of segregation.
Trump officials said that the Obama administration overstepped its authority by going beyond what the Supreme Court has said in affirmative-action cases. In recent years, the court has restricted when race can be used. President Barack Obama’s policies interpreting those rulings sought to show schools and colleges how they could use race voluntarily in the interest of promoting diversity.
The Trump administration did not offer a road map for schools moving forward. But officials seemed to signal their intent by replacing the Obama statements with one from President George W. Bush’s administration on the Education Department’s website. The Bush-era document stresses a preference for “race-neutral” methods for placing students.
The administration’s action, which could ripple through the education system from prekindergarten through college, was the latest of several measures critics say have eroded civil rights protections in classrooms and on college campuses. Education Secretary Betsy DeVos also has withdrawn Obama-era guidance that instructed schools to allow transgender students to use bathrooms in accordance with their gender identity and spelled out how schools should investigate sexual assault. Her action sought to safeguard the rights of accused students.
As they withdrew the Obama-era statements, Trump officials said the federal government should not go beyond what judges have allowed. The high court has said race-conscious admissions are permissible when schools also take into account other factors in an applicant’s background.
“The Supreme Court has determined what affirmative action policies are Constitutional, and the Court’s written decisions are the best guide for navigating this complex issue,” DeVos said in a statement. “Schools should continue to offer equal opportunities for all students while abiding by the law.”
Attorney General Jeff Sessions said the action was meant to restore the rule of law by “rescinding federal guidance documents that were issued improperly or that were simply inconsistent with current law.”
At issue were seven Obama administration guidance statements from 2011 to 2016. In one, the Justice and Education departments said in 2011 they recognized “the compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body.” It went on to assert that schools have flexibility “to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet this compelling interest.”
Opponents of affirmative action said they were heartened by the Trump administration’s move.
“It’s a very good development,” said Roger Clegg, president of the Center for Equal Opportunity, based in Falls Church, Virginia. He said it was appropriate for the administration to ditch policies that had encouraged schools to weigh race and ethnicity in deciding where students would be assigned or admitted. “Students should be able to go to a school without regard to their skin color or what country their ancestors came from,” he said.
But former Obama officials criticized the move.
“Once again, the Trump administration works to create confusion where none exists, needlessly muddying civil rights practices in schools,” Catherine Lhamon, assistant education secretary for civil rights under Obama, said in an email. “The Supreme Court has been consistent over decades in its rulings on lawful use of race in affirmative action and the guidance the Trump administration rescinds today offered nothing more than a clear and practical statement of the law and how to comply with it. Taking away that guidance undermines the steps toward equity school communities have long been taking.”
The Trump policy shift, first reported by the Wall Street Journal, comes at a pivotal moment in the long-running affirmative-action debate as President Donald Trump weighs a replacement for Anthony Kennedy, the retiring Supreme Court justice who was a swing vote in landmark cases. One was a 2016 ruling that upheld race-conscious college admissions in the interest of assembling a diverse class. The president’s choice to replace Kennedy could tilt the outcome in future cases.
Harvard University’s use of race in admissions has come under scrutiny in a federal lawsuit that alleges the school has discriminated against Asian-Americans. Separately, the Justice Department is conducting a civil rights investigation of Harvard admissions.
The university denies wrongdoing and says its methods – weighing race and ethnicity as one factor among many in a review of an applicant’s background and credentials – conform to decades of settled law.
Not all colleges use race in admissions. Some states, including California and Florida, prohibit public universities from considering race and ethnicity.
In recent years, deans also have put emphasis on social, geographic and economic diversity. Some want more first-generation college students. Others are seeking to draw more women into science and engineering programs, or more men into humanities.
But for many selective schools, public and private, race remains a factor as they seek to build incoming classes representative of a range of racial and ethnic backgrounds. These schools say racial diversity plays a crucial role in exposing students to new viewpoints. That is why higher-education leaders have argued repeatedly to the Supreme Court that its precedents on affirmative action should be upheld.
The Trump administration’s action was put in motion with a letter from Kenneth Marcus, assistant education secretary for civil rights, and John Gore, acting assistant attorney general. “The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution” and federal law, they wrote.
The impact on college practices remains to be seen.
Peter McDonough, vice president and general counsel of the American Council on Education, which represents college and university presidents, said he doubted schools would change admission policies based solely on Tuesday’s announcement. He noted that administrative guidance does not carry the legal weight of court rulings or statutes enacted by Congress. “It isn’t shocking that guidance would be withdrawn,” he said. “It happens all the time across administrative units.”
McDonough said the action could have a chilling effect on colleges as they review their admission methods. “The message – but not the law – could be that if you take race into account or ethnicity into account as one of the several factors in your review process, you’re going to be challenged,” he said.
Revoking the Obama-era guidance on affirmative action could affect elementary and secondary schools that have grappled with racial imbalances. In 2007, the high court sharply limited how school districts could use race in enrollment.The ruling struck down race-based policies in Seattle and Louisville. It confused school officials, who worried that their policies for assigning students ran afoul of the law.
The following year, the Bush administration advised schools to use “race-neutral methods” to determine where children go to school, suggesting that officials use socioeconomic status instead of race. The Obama administration in 2011 issued its guidance, which spelled out how schools could use race in enrollment policy to promote diversity and avoid isolating students of one race in a single school.
The 2011 guidance sought to help school districts thread the needle when using race or other factors in enrollment policies. That guidance also cautioned school officials that they should be careful when using race and that they could do so only in limited circumstances.
Rachel Kleinman, senior counsel at the NAACP Legal Defense Fund, said withdrawing the guidance could deter districts from implementing policies to increase diversity. Those districts will no longer be able to rely on the Education Department, she said, to help them craft a policy that complies with the Supreme Court’s decision.
Kleinman said she feared the action “might chill school districts from doing anything at all.” But she said it will have no impact on laws that govern school integration and admissions, nor will it affect the hundreds of schools under desegregation orders.
Despite the administration’s skepticism of race-based policies, Kleinman said she has seen no less cooperation from the Justice Department in active desegregation cases.
(c) 2018, The Washington Post · Nick Anderson, Moriah Balingit