In Trump Era, the Use of Race in Admissions Comes Under New Scrutiny

Updated (8/2/2017, 10 a.m.) with comment from the Justice Department.

Donald Trump rarely spoke about higher education during his presidential campaign, which left many people wondering how he might deal with scores of campus issues.

The picture became clearer Tuesday on one front: affirmative action in college admissions.

According to an internal memo obtained by The New York Times, the Justice Department will begin redirecting resources to investigate, and potentially sue, colleges and universities over admissions decisions that are perceived as discriminating against white applicants. The Times reported that the department’s new effort is likely to be run out of its front office, which is staffed by political appointees, rather than the part of the department staffed by career officials.

The news drew a swift rebuke from groups that saw the memo as another sign of the Justice Department — under the leadership of Jeff Sessions, the attorney general — significantly scaling back its role in protecting civil rights.

“By assembling a team of attorneys in the front office of the Civil Rights Division to focus on so-called ‘intentional race-based discrimination,’ this Justice Department is laying the groundwork to attack policies that help promote racial diversity at colleges and universities,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, a liberal advocacy group, wrote in a statement.

Best way to distract from chaos: play to the racist base.

A Justice Dept led by Jeffrey Beauregard Sessions is well-suited to the task. https://t.co/FDywmKuIhs

— Prof Dynarski (@dynarski) August 2, 2017

Others welcomed the news. Roger Clegg, formerly a top official in the civil-rights division during the Reagan administration and the first Bush administration, told the Times that the project was a “long overdue” development. “The civil-rights laws were deliberately written to protect everyone from discrimination, and it is frequently the case that not only are whites discriminated against now, but frequently Asian-Americans are as well,” said Mr. Clegg, who is now president of the Center for Equal Opportunity, a conservative think tank.

A Justice Department official told The Chronicle in a written statement on Wednesday morning that the memo was a “personnel posting” that did “not reflect a new policy or program or any changes to longstanding DOJ policy.” The official added that “whenever there’s a credible allegation of discrimination on the basis of race, the department will look into it.”

Legal experts who spoke to The Chronicle on Tuesday night said that it is not surprising to see a conservative administration go after race-conscious admissions policies. Over the past several years, the battle over race-conscious approaches has played out in the U.S. Supreme Court — most recently, in the case of Fisher v. University of Texas at Austin. Abigail N. Fisher, a white woman who was denied admission to the university’s flagship campus, in Austin, sued the institution over what she believed to be a discriminatory admission policy. The Supreme Court ruled against her last summer, upholding a race-conscious admissions program at the university.

Several observers who criticized the Justice Department’s apparent move mentioned the Fisher case and noted that the court has often stood on the side of race-conscious policies. “Longstanding Supreme Court precedent has upheld the constitutionality and compelling state interest of these policies, and generations of Americans have benefited from richer, more inclusive institutions of higher education,” said Vanita Gupta, president and chief executive of the Leadership Conference on Civil and Human Rights.

Donald E. Heller, provost of the University of San Francisco and a veteran researcher of issues related to race, class, and college access, is not as sure that the Supreme Court has clearly defined the legal limits of race-conscious admission policies. “We won’t know until there is another test case,” he said. But the Justice Department could potentially “feel it can relitigate” questions raised before the court before, in lawsuits mounted by advocacy groups against the University of Texas at Austin and the University of Michigan at Ann Arbor.

In previous administrations, frays about race-conscious policies have surfaced in the Justice and Education Departments. The agencies challenged the legality of programs on college campuses reserved for women and minority students during the Bush administration.

Some legal experts said that the federal government could, if it chose to, initiate compliance reviews of race-conscious admissions policies at dozens of colleges right now. The fear, one expert said, is that institutions could be randomly identified and targeted. Those colleges would then be forced to produce extensive data supporting their limited use of race in admissions. And although colleges with race-conscious programs are supposed to compile such evidence already, having it on hand is one thing, submitting it to scrutiny is another.

Neal H. Hutchens, a professor of higher education at the University of Mississippi, worries that the administration’s actions will “put a chill” on institutions’ efforts to work within the law to help underrepresented students. “If we look at the high burden the court has already placed on colleges, and couple that with the fact that states like Michigan and California have already put bans on the use of race in higher-education admissions, this just creates one more hurdle and barrier to furthering important equity and diversity goals.” And, he added, “at a time when there are actual threats to students of color on campuses in this country, it seems like that would be a lot better issue to focus on. How do we make those students feel safe and protected?”

John B. King Jr., president of the Education Trust and an education secretary during the Obama administration, said in a written statement that with this project, the Trump administration “appears to be taking a hard line against efforts to increase campus diversity,” as opposed to dealing with the opportunity gap facing low-income students and students of color.

If the administration does intend to pursue litigation against colleges for perceived discrimination in race-conscious admissions policies, it must have an alternative that maintains racial equity on campuses, said Richard D. Kahlenberg, a senior fellow at the Century Foundation. “If the administration wants to be successful,” he said, “they have to have an affirmative plan for making sure that disadvantaged students are included. Otherwise, it just seems punitive.”

Mr. Kahlenberg said that if the administration truly wanted to improve fairness in admissions, it would also look at practices such as legacy preferences. And he’s not alone in thinking that. Kim Yi Dionne, an assistant professor of government at Smith College, tweeted:

If anyone was getting AFFIRMATIVE ACTION, it was the kid of a future donor or graduation speaker or corp ldr who could hire future grads.

— kim yi dionne (@dadakim) August 2, 2017

How much affirmative action is too much “is really the question most of us are asking now,” said Mr. Heller, of the University of San Francisco.

“Hopefully, universities will not be cowed by any action the Justice Department might take.”

Eric Hoover, Peter Schmidt, and Clara Turnage contributed to this article.

Adam Harris is a breaking-news reporter. Follow him on Twitter @AdamHSays or email him at adam.harris@chronicle.com.