The Trump Administration Just Rescinded Obama-Era Guidance on Race-Conscious Admissions Policies. So What?

Maybe the ground shook a little, but the legal pillars supporting affirmative action didn’t sway. The Trump administration on Tuesday rescinded Obama-era guidance on race-conscious admissions policies. Some education wonks and legal experts said the move was inevitable — and hardly shocking.

After all, the administration has previously signaled its opposition to race-conscious programs, which are used at many top-tier institutions. Still, college leaders have reason to consider what just changed. So, let’s review a bit.

The Obama administration’s guidance gave colleges leeway in determining whether considering an applicant’s race was necessary. “Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable,” according to guidance issued in 2011. In some cases, that document said, approaches that didn’t help a college achieve a certain level of diversity, or that sacrificed its educational mission, might be “unworkable.”

Now that’s out the window. Joint guidance issued by the Department of Education and the Department of Justice on Tuesday says that the Obama administration’s guidelines “advocate policy preferences and positions beyond the requirements of the Constitution.” And so the Trump administration has withdrawn the documents, which it said were “inconsistent with governing principles for agency guidance.”

But what does that change? Certainly not the bottom line known as the law of the land. The Supreme Court two years ago upheld race-conscious admissions policies in Fisher v. University of Texas at Austin, affirming previous rulings that colleges can consider race as one of many factors in their evaluations of applicants. Legally speaking, court rulings and congressional statutes are the heavy hitters; administrative guidance, not so much.

“This can’t wipe out or undo four decades of case law that the Supreme Court has left us with,” says 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. “The court has said that there are compelling educational benefits of institutional diversity, and very clear steps institutions can take to ensure compliance with the law. To the extent that institutions are attentive to the law, they should be in as good a shape tomorrow as they were yesterday.”

Michael A. Olivas, a law professor at the University of Houston and a national expert on higher-education legal issues, agreed with that assessment. “This is much ado about nothing because there has been no material change in the law,” he said. “It’s a disservice to the country to suggest that there’s been a change just because there’s a new sheriff in town.”

Roger Clegg had a different view: “A better analogy is that we had a sheriff who wasn’t enforcing the law, and now we have a new sheriff who is enforcing it.”

Clegg, president of the Center for Equal Opportunity, which opposes race-conscious policies, described the Obama administration’s guidance as misleading. “It did not fairly state what the law was,” he said, “and it understated the restraints that courts have put on racial and ethnic preferences over the years.”

If nothing else, Tuesday’s rollback represents the natural ebb and flow of power in Washington. Especially when the White House shifts from one party to the other, existing guidance often gets tossed.

For instance, the Obama administration’s guidance replaced that of George W. Bush’s administration, which had told colleges that they could not consider race in the admissions process unless it was “essential” to achieving their mission (the Trump administration is apparently restoring that language). Bush-era guidance seemed to discourage the use of race, which, it said, “must have a logical end point.” By contrast, Obama-era guidelines said such programs “greatly contribute to the educational, economic, and civic life of this nation.”

‘It Gives Us Some Momentum’

Curt A. Levey, president of the Committee for Justice, a conservative advocacy group, helped challenge the University of Michigan at Ann Arbor’s race-conscious programs while working at the Center for Individual Rights. He played down the significance of the new guidance.

“It has symbolic value, but I don’t know that it will make a lot of difference on the ground,” Levey said. “For people like me, who are very skeptical of affirmative action, it gives us some momentum. But psychological momentum won’t do a lot of good. Someone actually has to bring lawsuits. And lawsuits are few and far between.”

As in many admissions evaluations, context matters here. Once again the fairness of considering an applicant’s race is a front-page question. A high-profile lawsuit challenging Harvard University’s use of race is well underway. The Justice Department has begun an investigation of alleged discrimination against Asian-American applicants at Harvard. And Justice Anthony M. Kennedy, who cast the deciding vote in Fisher, has announced his retirement. His replacement could tilt the balance of the court in a future affirmative-action case.

Given all those developments, supporters and critics of race-conscious admissions perhaps have reason to think that such policies are on borrowed time. Yet Coleman, at EducationCounsel, cautions against that reading: “This might seem like a mini perfect storm, but there are really important legal foundations that we should not ignore while the latest news is swirling.”

Neal H. Hutchens, a professor of higher education at at the University of Mississippi, agrees that the rescinded guidance in no way weakens the U.S. Supreme Court’s recent rulings on the use of race in admissions. “Yet there are other things besides legal interpretations that affect how colleges and universities function,” he said. “This sends a very strong signal. You have the federal government saying to colleges, ‘Be very careful what you do.’ And that could dissuade some institutions from being as assertive as they might have been in their consideration of race.”

Eric Hoover writes about admissions trends, enrollment-management challenges, and the meaning of Animal House, among other issues. He’s on Twitter @erichoov, and his email address is eric.hoover@chronicle.com.