By Catherine Gewertz and Mark Walsh
Education advocates are reacting with dismay to a report that President Donald Trump’s administration is recruiting lawyers within the U.S. Department of Justice for an initiative to investigate and potentially sue colleges and universities over racial preferences in admissions that discriminate against white applicants.
“The Supreme Court has repeatedly affirmed that there is a compelling interest in higher education institutions having diverse student bodies,” said Anurima Bhargava, a former Justice Department civil rights official under President Barack Obama. “My sense of the way this [Trump initiative] is playing out, the idea is to instill fear and intimidation” among educational administrators, she said.
Opponents of race-based policies in education, however, applauded the report in The New York Times on Aug. 2 about the Justice Department effort, suggesting it would have an impact in K-12 schools as well as in higher education.
“If a school board is thinking about coming up with some system to override the wishes of parents and teachers, or to override the usual sound educational policies to achieve a particular racial balance, they had better be careful,” said Roger B. Clegg, the president and general counsel of the Center for Equal Opportunity in Washington, who was a Justice Department official under Presidents Ronald Reagan and George H.W. Bush.
A Personnel Posting
The advocates were reacting to something whose existence the Justice Department, at least initially, declined to confirm. But the Times reported that the department had issued a memo internally seeking lawyers interested in a project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions,” in the words of the memo.
The project would be run from the “front office” of the Justice Department’s civil rights division, the paper said, meaning it would be run largely by political appointees, rather than from the division’s educational opportunities section, which consists of career lawyers and employees who enforce civil rights laws in the educational context.
Civil rights division lawyers who want to work on the affirmative action project must submit their résumés by Aug. 9, the departmental memo said, according to the Times.
At the White House on Wednesday, Press Secretary Sarah Huckabee Sanders seemed to have a prepared answer for a query about the project.
“The New York Times article was based entirely on uncorroborated inferences from a leaked internal personnel posting,” Sanders said at the daily press briefing. “While the White House does not confirm or deny the existence of potential investigations, the Department of Justice will always review credible allegations of discrimination on the basis of any race. And I don’t have anything further on that.”
[Update:] Late Wednesday, Justice Department spokeswoman Sarah Isgur Flores issued a statement that said, “Press reports regarding the personnel posting in the Civil Rights Division were inaccurate. The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior administration left unresolved. The complaint alleges racial discrimination against Asian Americans in a university’s admissions policy and practices.”
Flores continued: “This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general. The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”
The complaint referred to by Flores involved allegations against Harvard University. Admissions practices at Harvard and the University of North Carolina at Chapel Hill have also been challenged on behalf of Asian-American students in suits organized by a group called the Project on Fair Representation.
The Supreme Court has upheld certain uses of race in college admissions as long as they meet the highest level of judicial scrutiny. In 2016, the justices ruled 4-3 in Fisher v. University of Texas at Austin that courts reviewing a race-conscious admissions plan owe considerable deference to a university in defining “those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
In K-12 education, the court sharply curtailed the permissible voluntary uses of race in its 2007 decision, in Parents Involved in Community Schools v. Seattle School District, but a concurrence by Justice Anthony M. Kennedy suggested ways in which school districts could consider race in assigning students to schools.
“At a time when we have an increasingly diverse student pool in K-12 schools as well as in higher education, it is odd that there is an effort to curtail some of the important tools and resouces that institutions have to try to promote an inclusive and diverse environment for students,” said Bhargava, who as a political appointee was the head of the educational opportunities section for much of the Obama years and is now a fellow at the Open Society Foundations, in New York City, and the Carr Center for Human Rights Policy, at Harvard University’s John F. Kennedy School of Government.
Other education advocates also expressed concern about the reported Justice Department initiative.
Wil Del Pilar, the vice president of higher education policy and practice at the Education Trust in Washington, said in an interview that attacks on race-conscious admissions “impact how students view themselves, where they belong at institutions of higher education. If I’m a student and the messaging has been that we’re going to ban affirmative action, the way students internalize it is, ‘They don’t want me here if I’m black or Latino. They don’t value my experience, as adding to this campus.’”
David Hawkins, the executive director for educational content and policy at the National Association for College Admission Counseling, said the Justice Department’s effort could be one more obstacle to educational diversity efforts.
“We know that for folks in secondary schools, particularly counselors, but anyone who works with students to try to get them to higher education, that this is yet another obstacle in a field full of obstacles that already challenge our college access and success objectives,” he said. “It creates real challenges when you work with students and they feel that the system is adding yet another weight on the scale against which they have to fight.”
Cornell William Brooks, a former president of the NAACP, said on CNN Wednesday that the reported project sends “a chilling message.”
“This seems to be race-baiting if you will, meant to address the ideological concerns of the president’s base,” he said. “We don’t see white applicants being discriminated against categorically. What we see are offices of admission using race and ethnicity as a part of an admissions process to develop a diverse campus and student body.”
But opponents of affirmative action in education, while disagreeing with the Supreme Court’s limited embrace of certain policies, have long argued that many colleges and universities have impermissibly used race preferences to the detriment of some white and Asian-American applicants.
Todd F. Gaziano, the head of the Washington office of the Pacific Legal Foundation, a Sacramento, Calif.-based organization that opposes racial preferences, said that for many U.S. colleges and universities, such race-conscious policies are not the last resort, as the Supreme Court’s precedents call for, but are “the first resort, the second resort, and the third resort, and they would never survive strict scrutiny under the court’s precedents.”
“What’s going on in most elite universities falls far short of what the Supreme Court has authorized,” he said.
The Justice Department initiative, Gaziano said, at a minimum ought to be conducting serious investigations. I’m sure the government lawyers are going to investigate before they sue.”
A version of this news article first appeared in The School Law Blog.