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College & Workforce Readiness

Unease Over Justice Dept. Stance on Admissions

By Mark Walsh & Catherine Gewertz — August 22, 2017 5 min read

Education and civil rights advocates remain uneasy in the wake of a report earlier this month that appeared to suggest that President Donald Trump’s administration is recruiting lawyers in the U.S. Department of Justice to investigate race-conscious admissions practices in at least one higher education institution.

The New York Times disclosed the existence of the recruitment memo on Aug. 1, and reported that the initiative to investigate and potentially sue colleges and universities over admissions practices that discriminate against white applicants would be run from the “front office” of Justice Department’s civil rights division. That unit is staffed by political appointees, rather than by the career attorneys who usually handle education issues.

In a White House press briefing the next day, Trump spokeswoman Sarah Huckabee Sanders blasted the newspaper’s “uncorroborated inferences from a leaked internal personnel posting,” and refused to confirm or deny the existence of a special project focused on college admissions, a subject of keen interest in the K-12 circles that deal with college counseling, readiness, and access.

Later that day, the Justice Department said there was no broad-based project on affirmative action.

In a statement, spokeswoman Sarah Isgur Flores said the internal memo sought lawyers interested in investigating one case: an administrative complaint filed in May 2015 that allegesracial discrimination against Asian-Americans in one university’s admissions practices.

She didn’t name the targeted university, but the case she referred to was filed by a coalition of Asian-American advocacy groups against Harvard University. Admissions practices there and at 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 Students for Fair Admissions. The organization is backed by Edward Blum, who had organized the ultimately unsuccessful challenge to race-based admissions at the University of Texas at Austin.

“This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general,” Flores’ statement said. “The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”

While the scope of the Trump administration’s effort was subject to debate, groups that have fought for universities’ right to consider applicants’ race in admissions responded by shifting into high-alert gear.

“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.

But opponents of race-conscious policies in education welcomed the idea of a Justice Department focus on the issue, suggesting it would have an impact in K-12 schools as well as in higher education.

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, said the department’s memo suggested to him that school boards “had better be careful” if they’re considering policies that seek “a particular racial balance” in K-12 schools.

Opinion Divided

The Supreme Court has upheld certain uses of race in college admissions as long as they meet the highest level of judicial scrutiny. They must not employ racial quotas and must consider race as one factor in a holistic, individualized review of each applicant.

In 2016, after wrestling with the case over several years, the high court upheld the race-conscious plan at UT-Austin.

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 several ways in which school districts could consider race in assigning students to schools.

Some education advocates expressed concern about the impact that news of the Justice Department memo could have on the way students imagine their college prospects.

David Hawkins, the executive director for educational content and policy at the National Association for College Admission Counseling, said that for adults who help students reach college, “this is yet another obstacle in a field full of obstacles that already challenge our college access and success objectives.

“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,” he said.

Attacks on race-conscious admissions “impact how students view themselves, where they belong at institutions of higher education,” said Wil Del Pilar, the vice president of higher education policy and practice at the Education Trust in Washington.

“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.’”

But Todd F. Gaziano, who heads the Washington office of the Pacific Legal Foundation, which opposes racial preferences, said that many U.S. colleges and universities use race-conscious policies not as the last resort, as the Supreme Court’s precedents call for, but as “the first resort, the second resort, and the third resort, and they would never survive strict scrutiny under the court’s precedents.”

The Justice Department, Gaziano said, at a minimum ought to be conducting serious investigations.

A version of this article appeared in the August 23, 2017 edition of Education Week as Unease Over Justice Dept. Stance on Admissions

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