The nation’s long fight over affirmative action at colleges has flared back up with a report this week that the Trump administration’s Justice Department plans to go after race-conscious admissions policies. While colleges have good reason to be concerned about such news, the fears it has aroused in them may be exaggerated and somewhat misplaced.
Why? For starters, whether the administration actually plans to broadly attack such policies remains unclear. The Justice Department has called inaccurate the idea, first publicized Tuesday in a New York Times article, that it is preparing to investigate, and possibly sue, multiple colleges over race-conscious admissions practices.
Sarah Flores, a Justice Department spokeswoman, said in a statement issued Wednesday that all the agency currently has in the works is a single investigation of a single university, based on a discrimination complaint filed by 64 Asian-American groups. She did not specify what institution will be examined, but the time frame she gives for the complaint — May 2015 — corresponds with an announcement by more than 60 Asian-American groups that they asked for federal investigations into whether Harvard University systematically discriminates against Asian-American applicants.
Of course, acknowledging only one such investigation does not preclude the Justice Department from embarking on more down the road. But, as explained in depth below, any broader Trump administration campaign against race-conscious admissions policies will have trouble making much headway, at least in the short term. Such policies simply have too much past U.S. Supreme Court backing for their legality to be easily challenged. They also have a long history of surviving attacks in the national political arena.
Here are other key thoughts that colleges should keep in mind:
The law itself is not changing anytime soon.
The Supreme Court strongly upheld the constitutionality of race-conscious college admissions in a 1978 decision involving the University of California, a 2003 ruling involving the University of Michigan’s law school, and, most recently, a ruling last year involving the University of Texas at Austin. The majority opinion in that latest decision reiterated the need for the university to continually make sure its policy is narrowly tailored, but also signaled the court’s willingness to give colleges significant deference in making such calls.
"The Supreme Court has repeatedly made it clear that properly designed admissions policies considering many different factors in a holistic way can satisfy the U.S. Constitution," says Marvin Krislov, president of Pace University, who was the University of Michigan’s general counsel as it was defending its race-conscious admission policies from challenge.
Arthur L. Coleman, managing partner of EducationCounsel LLC and a former deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights, says, "It is inconceivable to me that there is any room to reverse four decades of Supreme Court precedent on this front."
Even with this year’s addition of Justice Neil Gorsuch to replace the late Antonin Scalia, a fellow conservative who died last year before he could weigh in on the Texas case, the Supreme Court retains a narrow majority in favor of colleges’ consideration of race.
Both Harvard University and the University of North Carolina at Chapel Hill are the subjects of federal lawsuits arguing that their race-conscious admissions policies amount to discrimination. But Edward J. Blum, who has mounted both legal challenges as president of Students for Fair Admissions, an advocacy group, says it will take at least two years for either case to be litigated enough to be ready for the Supreme Court’s consideration.
"We are in the middle of a long, protracted fight," he says.
Each college has its own defenses.
So long as the Supreme Court allows race-conscious admission policies that are narrowly tailored, defeating any college’s policy in court will require showing that it fails that narrow-tailoring test. Each college’s admission policies are so adapted to that institution’s distinct mission, needs, and resources, that "each case is going to be unique," Mr. Blum says. A federal campaign against such policies will need to be fought college by college, based on institution-specific facts. The defeat of one college’s policies may have little bearing on the fate of another.
Critics and defenders of race-conscious admissions sharply disagree on how vulnerable colleges are to such legal scrutiny.
Roger Clegg, president of the Center for Equal Opportunity, a group that opposes race-conscious admission policies, says "a lot of schools are sloppy" when it comes to adhering to the Supreme Court’s guidance on the policies’ limits.
Curt A. Levey, president of the Committee for Justice, a conservative advocacy group focused on the federal judiciary, helped challenge the University of Michigan’s race-conscious admission policies in his former capacity as director of legal and public affairs for the Center for Individual Rights. He says whether colleges will be able to defend their policies "depends on whether the courts want to look at what colleges say they are doing or what is actually going on."
But Michael A. Olivas, a professor at the University of Houston and national expert on higher-education law, says: "The signposts are clear. Most institutions know what they can and can’t do."
Mr. Coleman says the college officials that he counsels on the legal limits of such policies "take the Supreme Court’s edicts seriously" and continually evaluate their policies’ impact and compliance with the law.
Lee C. Bollinger, a lawyer who served as president of the University of Michigan while its policies were being challenged and now heads Columbia University, says colleges that are found to have race-conscious policies that violate the law in minor ways should be able to preserve them by tweaking them back into compliance.
Colleges can prevail and still feel beaten up.
The bad news for colleges with race-conscious admissions policies is that the federal government has a long list of ways to pressure them, including issuing regulations and letters of guidance, investigating them, suing them, and cutting off their federal funds.
"To be investigated, or to be sued and drawn into litigation, is itself a penalty, even if you win in the end," Mr. Bollinger said. Hearing that the Justice Department might investigate colleges’ race-conscious admission policies "makes people in the higher-education community very anxious," because challenges to the legality of their policies and practices "can be wearing and take resources away."
Mr. Levey says the prospect of Justice Department investigations will "put some fear in the universities, and that alone might have an effect."
Republicans — and Trump himself — have been divided on such matters.
Some critics of race-conscious admissions cheered the election of President Trump. Being president may afford him opportunities to appoint additional Supreme Court justices who are opposed to such policies. Attacks on those policies are almost certain to appeal to his white, populist base. Attorney General Jeff Sessions has long been a skeptic of affirmative action and a conservative on racial issues.
Nonetheless, hopes that the current administration will make much effort to eliminate race-conscious admissions may be misplaced. After all, President Trump declared himself to be "fine with affirmative action" during his campaign. Betsy DeVos, his secretary of education, opposed the 2006 ballot initiative that banned Michigan’s public colleges and other state agencies from using racial preferences. In June, Candice E. Jackson, acting assistant secretary at the Office for Civil Rights, told a meeting of college lawyers that she didn’t "foresee there being any new regulation or policy on the topic of racial preferences" in admissions.
If President Trump disappoints opponents of race-conscious admission policies, he would hardly be the first Republican president to do so. President George W. Bush’s administration failed to take a hard stand against race-conscious admissions, although it did lean on colleges to abandon policies restricting access to certain programs or scholarships to women or minority-group members. When the Supreme Court ruled on race-conscious admission policies in 2003, it was flooded with briefs in support of such policies filed by military leaders and the heads of major corporations, constituencies the Republican Party often is hesitant to offend.
Mr. Clegg of the Center for Equal Opportunity says that he remains hopeful that President Trump will oversee an effort to curtail race-conscious admissions but that the fight against such policies will continue regardless. "We are playing a long game," he says. "Eventually the use of race in university admissions is going to end."
Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at firstname.lastname@example.org.