The Chronicle Review

The Real Threat to Affirmative Action

Stuart Bradford for The Chronicle Review

August 02, 2017

No one should be surprised to see the Trump administration’s Justice Department begin a process to investigate and potentially sue colleges that engage in race-conscious admissions for discriminating against white applicants. Conservatives have long staunchly opposed affirmative action. Furthermore, the beleaguered Trump administration is looking to appeal to its conservative base.

While the understandable reaction among university leaders may be to scramble to assess their liability, they should not overreact to this news. Until the composition of the U.S. Supreme Court changes, the Trump administration is unlikely to have much success in challenging affirmative-action programs. In June 2016, in Fisher v. University of Texas at Austin, the Court reaffirmed that colleges have a compelling interest in maintaining a diverse student body, and they may use race as one of many factors in the admissions process.

The Supreme Court has been clear that campuses may engage in race-conscious admissions so long as they meet basic requirements. A college or university must document its need for diversity and must show, as the University of Texas demonstrated, that affirmative action is necessary to achieve a racially diverse student body. Also, an institution must periodically re-examine its program and establish its continuing necessity.

Of course, the Trump administration could look at race-conscious admissions programs to ensure that they meet these requirements, and sue those colleges that have failed to follow the Supreme Court’s prescription for such programs. But that possibility is nothing new for campus leaders.

Still, the Trump Justice Department seems to want to accomplish more than improved documentation of colleges’ need for such admissions strategies. Like the Bush administration before it, its real goal is to end affirmative action.

“Those who want to dismantle affirmative action could argue that diversity in the classroom and on campus does not matter.”
The claim of the need to investigate discrimination against whites, like most opposition to affirmative action, is based on the false premise that colleges should be admitting students based solely on their grades and test scores. Those numbers have never has been the sole basis for determining "merit." Colleges have always valued diversity. For example, it has historically been easier for students from North Dakota or Montana to get into elite private East Coast universities than it has for students from New York or Boston. Those with exceptional skills and talents have often been admitted with lower grades and test scores. Many colleges give admissions preference to those whose relatives attended the institution, something that favors whites over racial minorities. As the Supreme Court has rightly recognized, assessments of "merit" properly look at many factors in terms of how a student will enrich the college.

There is no doubt that affirmative-action programs succeed in this goal. For instance, after the University of Texas adopted its race-conscious admissions program, there was a significant increase in applications from minority students, leading to a 20-percent rise in African-American and a 15-percent bump in Latino enrolled students.

Opponents of affirmative action, including the Trump Justice Department, must make one of two arguments, but neither is tenable. First, they could argue that it is possible to achieve racial diversity without race-conscious admissions. But the long history of racial discrimination in education and the continuing inequities in elementary and secondary schooling make this impossible. Campuses engage in affirmative action precisely because they have discovered that there is no other way, at this point in American history, to achieve diversity.

Alternatively, those who want to dismantle affirmative action could argue that diversity in the classroom and on campus does not matter. But educators know that it matters enormously. I have been a professor for 30 years and have taught constitutional law in classes that are almost all white and those that are racially diverse. It is different to talk about racial profiling by the police when there are African-American and Latino men in the room who can talk powerfully about their experiences of being stopped for driving while black or driving while brown. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.

Under current law, campuses have little to fear from the Trump administration’s desire to investigate affirmative-action programs. But that could change dramatically if Trump gets another pick for the Supreme Court. If any of the five justices currently supporting affirmative action (Breyer, Kagan, Kennedy, Ginsburg, and Sotomayor,) leave the bench during Trump’s term (and Justice Kennedy is rumored to be considering retiring next year), then Trump could appoint a justice who would surely be the fifth vote to find all affirmative-action programs to be unconstitutional. The real threat to affirmative action is not from the Trump Justice Department’s new project, but from any further change in the Supreme Court in the next few years.

Erwin Chemerinsky is dean and a professor of law at the University of California at Berkeley School of Law.