As Donald Trump moves to undo every last trace of Obama's legacy, the WSJ reported that on Tuesday, the Trump administration reversed Obama-era policies that encourage the use of race in college admissions "to promote diverse educational settings." Instead, the Trump administration will encourage the nation’s school superintendents and college presidents to adopt race-blind admissions standards.
The reversal would restore the policy set during President George W. Bush’s administration, when officials told schools that it “strongly encourages the use of race-neutral methods” for admitting students to college or assigning them to elementary and secondary schools.
Attorney General Jeff Sessions made the official announcement Tuesday afternoon.
"The American people deserve to have their voices heard and a government that is accountable to them. When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President," Sessions said. "In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That's wrong, and it's not good government."
The decision comes amid a DOJ probe whether Harvard was illegally discriminating against Asian-American students by holding them to a higher standard in its admissions process. The administration revived the probe last year after Obama civil rights officials dismissed a similar complaint.
While the decision does not change current US law on affirmative action, it provides a strong illustration of the administration's position on an issue that could take on renewed attention with the departure of Justice Anthony Kennedy from the Supreme Court.
The guidelines, which were issued jointly by the Obama Justice and Education departments, laid out legal recommendations for schools looking to use race as an admissions factor to boost diversity at their schools. Call it state-sponsored affirmative action. However, the WSJ reports that Trump admin officials will argue that the documents, published in 2011 and 2016, go beyond Supreme Court precedent on the issue and mislead schools to believe that legal forms of affirmative action are simpler to achieve than what the law allows.
It is hardly a surprise that the Obama officials who implemented the policies disagree: Anurima Bargava, who headed civil rights enforcement in schools under Obama’s DOJ, disagreed with that assessment, saying the documents simply offered guidelines to schools and colleges looking to continue using affirmative action legally; she countered by attacking the current administration’s action as signaling that it doesn’t favor racial diversity.
“The law on this hasn’t changed, and the Supreme Court has twice ruled reaffirming the importance of diversity,” she said. “This is a purely political attack that benefits nobody.”
Then again, perhaps the guidelines were not that innocent, and come as a 2014 lawsuit is unfolding in federal court against Harvard, filed by a group called Students for Fair Admissions, which alleges Harvard intentionally discriminates against Asian-Americans by limiting the number of Asian students who are admitted. It is expected to go to trial in October.
In the bigger picture, the action to rescind Obama-era guidelines comes at a rather sensitive time for the nation, just as Trump is set to appoint a new SCOUT judge, and is also likely to inflame a long-running national debate over the role of race in college admissions, an sensitive issue the U.S. Supreme Court has revisited on several occasions since the 1970s.
In 2016, the high court reaffirmed the practice in a 4-3 decision, but in his opinion, Justice Anthony Kennedy left the door open to future legal challenges by saying universities must continue to review their affirmative-action policies to assess their positive and negative effects.
Kennedy has since announced his retirement, and advocates on both sides say his successor, to be nominated soon by President Donald Trump, may take a different view on the practice as the Harvard case wends its way through the courts.
As such, the motive behind the process to undo one of Obama's core legacies may be to serve as a litmus test by the Trump administration to gauge just how conservative Kennedy's replacement will be, especially since the affirmative action guidelines are relatively innocuous.
Meanwhile, Harvard has previously objected to the lawsuit, claiming its admissions process is consistent with the legal precedents set over the past 40 years by the Supreme Court, which have allowed universities to consider race as a factor in admissions to obtain the benefits of a diverse student body.
But the plaintiffs suing Harvard said in court filings the school displayed a “stunning failure to take the elementary steps required by the law” to achieve diversity without taking race into account, such as considering applicants’ socioeconomic backgrounds, eliminating early admissions and increasing community college transfers.
And here is where Asian students felt cheated: as the WSJ reports, in court filings published last month as part of its continuing litigation, the university revealed that Asian-American applicants on average had higher academic marks and received higher scores from alumni interviews than other racial groups. But on a “personal” score that admissions officers used to gauge applicants’ character, Asian students scored the lowest.
Whatever the outcome of the challenge, it is inevitable that the aggrieved social grouping, whether conservatives or liberals, will allege that this is another example of racism escalating to dominate ever more aspects of daily life, at a time when social, racial, ethnic and wealth polarization in the US is already nearing its breaking point.