Legal

What You Need to Know About Race-Conscious Admissions in 2017

August 02, 2017

The New York Times reported on Tuesday evening that the U.S. Department of Justice is planning “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” The report was based on an internal document from the department that left many questions unanswered. Read more about what this could look like here.

In the meantime, let’s catch you up on the state of race-conscious admissions in 2017:

What do people mean by “affirmative action”?

It’s typically understood to mean the intentional promotion of members of minority groups to account for past and current discrimination. But colleges practice several forms of affirmative action in admissions, including ones that help the children of alumni and donors, prospective athletic stars, and others. The kind of affirmative action that appears to be in the cross hairs of the Department of Justice is race-conscious admissions, wherein colleges consider applicants’ race, among other factors, in deciding whether to admit them.

Isn’t affirmative action in admissions about making up for past wrongs?

No. At least, that’s not the stated rationale. Leaders in admissions say they prize diversity of all kinds in recruiting new classes of students. That means diversity in life experiences, in socioeconomic status, and other factors, including race. And from a legal standpoint, considering race in the admissions process has, in general, been deemed acceptable if it is designed to let the educational benefits of student diversity flow — not to remedy past inequities.

But opponents of race-conscious admissions tend to view it as an affirmative-action project. And they say that, by privileging black, Hispanic, Native American, and other disadvantaged groups, colleges end up discriminating against more-qualified applicants, typically white and Asian-American students, as measured by grades and test scores.

Didn’t the Supreme Court decide that race-conscious admissions is OK?

Yes, for now.

Last year the court ruled 4 to 3 that the University of Texas at Austin could consider race in the admissions process. That ruling resulted from a protracted legal challenge brought by Abigail N. Fisher, a white woman who sued after she was denied admission to the flagship campus. She claimed the university’s policies discriminated against her because of her race.

But observers of the court viewed the decision as only a narrow affirmation of one university’s admissions policy. Even the court’s majority cautioned that its ruling “does not necessarily mean the university may rely on that same policy without refinement."

Indeed, Ms. Fisher’s lawyer, Edward Blum, said at the time that he was not deterred by the decision. He has been involved in legal fights with Harvard University, Princeton University, and the University of North Carolina at Chapel Hill over similar issues. Those cases are pending.

But higher-ed leaders largely considered the 2016 decision a solid indication that race-conscious admissions was here to stay, at least for the near future.

Still, that ruling was issued by a Supreme Court that was missing two members. Justice Elena Kagan recused herself from the case, and with the Republican-run Senate refusing to consider President Barack Obama’s nominee to succeed the late Antonin Scalia, just seven justices weighed in. Since then Justice Neil M. Gorsuch, seen as ideologically similar to Justice Scalia, has joined the court. So the Fisher precedent could now be open to reconsideration.

Do all colleges use race-conscious admissions?

It’s banned at public colleges in eight states. (Those include California, where the state’s most prestigious public colleges have observed a steady drop in minority enrollment ever since Proposition 209 effectively banned race-conscious admissions, in 1996.)

In states where race-conscious admissions is allowed, the way it is used differs from college to college. The issue of affirmative action in admissions, as a whole, tends to gain attention primarily at high-profile, selective, residential colleges.

Has the Department of Justice ever taken an interest in affirmative action?

Yes. The department has weighed in with supporting briefs in various cases, going back at least as far as Hopwood v. Texas, in 1996, but legal experts interviewed on Tuesday night weren’t aware of cases in which it has directly litigated on behalf of the United States.

What do we know about the Trump administration’s feelings on this issue?

President Trump hasn’t spoken at length on the topic, at least during the presidential campaign and his young presidency. But Jeff Sessions, the attorney general, has a history of criticizing affirmative action. He spoke at length on the topic before the U.S. Senate’s Judiciary Committee in 1997. Here’s what he said, according to an ABC News report:

"We certainly want to reach out and make sure that every minority individual has full chances and rights in America. But when we make that a part of a legal requirement of this nation, that the benefits and privileges of belonging to each American should be dispensed because of what group you belong to, and according to certain complex formulas of race and gender and those kind of things, we get into very troubling issues. I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.”

Mr. Sessions was rejected for a federal judgeship by the committee in 1986, amid charges of racism.

Is race-conscious admissions the main way colleges promote diversity on their own campuses?

Not really. Especially in the last decade, colleges have begun to grapple with the depth of the challenge, and how much effort is required to make a dent in it. Admitting students but not retaining and graduating them, for instance, does little to make a campus more diverse. Read more about that challenge, and how colleges are confronting it.

Andy Thomason oversees breaking-news coverage. Send him a tip at andy.thomason@chronicle.com. And follow him on Twitter @arthomason.

Eric Hoover contributed reporting.

Correction (8/10/2017, 10 a.m.): This article originally said incorrectly that race-conscious admissions policies had been banned through ballot measures in eight states. The text has been updated to clarify that such policies were banned at public colleges in eight states, although not always through ballot measures.

Correction (8/2/2017, 4:30 p.m.): This article originally stated that Edward Blum had brought lawsuits against three universities. The text has been corrected to say that he has been involved in legal fights with those institutions.