The Trump administration last week rescinded guidance issued by the Obama administration on how colleges can legally consider race and ethnicity in admissions decisions.
The move is the latest sign that the Trump administration is skeptical of the way some colleges consider race in admissions. But the immediate impact may be minimal. Court rulings already are more powerful than guidance from any administration. The move may indicate how the administration would respond to complaints it receives, but those complaints could well end up in courts and not be decided by federal agency officials.
In the immediate aftermath of the Trump administration's action, many college and university leaders were quick to say that they would not change policies on the recruitment and admission of underrepresented minority applicants. Among the institutions issuing such statements were the University of Texas at Austin and the University of Missouri System. Governor Andrew Cuomo of New York issued an open letter to the chairs of the boards of the City University of New York and the State University of New York urging them not to make any changes in policy because of the Trump administration's actions.
No college publicly announced a change of policy, but some experts believe some colleges may face new legal challenges to their policies in the years ahead, perhaps with courts less sympathetic than those in the past to diversity efforts in higher education.
In all, the Justice Department and Education Department withdrew seven separate documents -- issued by the agencies between 2011 and 2016 -- on the use of race in decisions by schools and by colleges. The guidance in those documents generally said that colleges had ways to consider race in admissions, consistent with various Supreme Court decisions.
But a Dear Colleague letter sent to schools and colleges late Tuesday said that officials at the two agencies "have concluded that [the documents] advocate policy preferences and positions beyond the requirements of the Constitution.… Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law. By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents."
"The departments are firmly committed to vigorously enforcing these protections on behalf of all students," said the letter, signed by Kenneth L. Marcus, assistant secretary of education for civil rights, and John M. Gore, acting assistant attorney general.
Press speculation prior to the release of the letter suggested that the Trump administration would encourage colleges to rely on 2008 guidance issued during the administration of President George W. Bush. That guidance, while not saying it was impossible to consider race in admissions, framed the issue in ways that many college officials viewed as discouraging colleges from doing so.
The letter released Tuesday, however, made no mention of the 2008 guidance.
Education Secretary Betsy DeVos issued a statement Tuesday that urged colleges and schools to focus on what the Supreme Court has said. “The Supreme Court has determined what affirmative action policies are constitutional, and the court’s written decisions are the best guide for navigating this complex issue,” she said.
What the Obama Guidance Said
Generally, college leaders and advocates for affirmative action had praised the guidance that has now been rescinded. One key document among those rescinded was Obama administration guidance issued jointly by the Education and Justice Departments in 2011. The guidance states that diversity is an important educational goal, and that colleges should be able to use a variety of methods (including the consideration of race and ethnicity in admissions) to achieve diversity. In many ways, the guidance is consistent with the arguments made by colleges that consider race in admissions decisions. The Obama administration also elaborated on the issue in 2016, again saying that colleges could legally consider race in admissions.
The guidance issued in 2011 never had the force of federal court rulings, but it was important nonetheless. The guidance outlined the way the Obama administration would consider complaints it received about admissions policies.
"Ensuring that our nation's students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty ideal. As the Supreme Court has recognized, the benefits of participating in diverse learning environments flow to an individual, his or her classmates, and the community as a whole. These benefits greatly contribute to the educational, economic, and civic life of this nation," the Obama administration guidance said.
It added, "Learning environments comprised of students from diverse backgrounds provide an enhanced educational experience for individual students. Interacting with students who have different perspectives and life experiences can raise the level of academic and social discourse both inside and outside the classroom; indeed, such interaction is an education in itself. By choosing to create this kind of rich academic environment, educational institutions help students sharpen their critical thinking and analytical skills."
The Supreme Court, in several rulings, has said that colleges that want to consider race and ethnicity in admissions may only do so if they have considered race-neutral means to promote diversity and found those inadequate. Many colleges -- in particular those with highly competitive admissions -- have said that there are no race-neutral ways.
The Obama administration guidance expressed some sympathy for that point of view. "Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable," the guidance says. "In some cases, race-neutral approaches will be unworkable because they will be ineffective to achieve the diversity the institution seeks. Institutions may also reject approaches that would require them to sacrifice a component of their educational mission or priorities (e.g., academic selectivity)," the guidance said.
The Trump administration has already signaled that it is much more skeptical of the consideration of race in admissions than was the Obama administration. The Justice Department is backing the plaintiffs in a suit over Harvard University's admissions policies. The plaintiffs in that case argue that Harvard discriminates against Asian-American applicants, a charge that the university denies.
Groups backing the lawsuit immediately issued statements praising the Trump administration's action Tuesday. The Asian American Coalition for Education called the move "a triumphant moment for Asian American communities."
But Harvard released a statement that indicated that the university had no plans to change any policy as a result of what happened Tuesday. "Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years," the statement said. "Harvard is deeply committed to bringing together a diverse campus community where students from all walks of life have the opportunity to learn with and from each other."
Even before Tuesday's news, many supporters of affirmative action were worried about its future in cases that reach the Supreme Court. The retirement of Justice Anthony M. Kennedy, who has in recent years backed the consideration of race in admissions, with some limits, may have erased the Supreme Court majority that has repeatedly upheld the right of colleges to do so.
What Should Colleges Do? What Should Applicants Expect?
Roger Clegg, president of the Center for Equal Opportunity, which opposes the consideration of race in admissions, said he thought colleges should take a careful look at their policies based on what the Trump administration has done. While Clegg disagreed with the Obama guidance, he said that it created a sense of "a safe harbor" for colleges that closely followed what the guidance said. Clegg said that the guidance went beyond what the Supreme Court permitted, and he suggested that legal support for even that level of consideration of race in admissions may be short-lived.
Colleges should "ask themselves whether the time has come to stop treating applicants differently based on skin color and national origin," Clegg said. "It becomes harder and harder to justify -- as a matter of both law and policy -- with every tick of the clock."
Michele S. Moses, professor of educational foundations and policy and associate vice provost for faculty affairs at the University of Colorado at Boulder, said she feared that some colleges would pull back on some of their policies, deciding that they do not want to be the target of lawsuits.
"During the George W. Bush administration, which acted similarly [to the Trump administration] around affirmative action, I said the actions were part of a politics of intimidation," Moses said via email. "Every time there is the threat of a legal or legislative change related to affirmative action in college admissions, some institutions make pre-emptive changes to their policies with the intent of avoiding future lawsuits … I’m afraid that [the Trump administration is] engaging in a politics of intimidation, to scare colleges and universities with threats of costly litigation."
Moses said she hoped that colleges would not be scared off diversity strategies by the Trump administration. "It is high time for courageous leadership in higher education. Institutions can retain their race-conscious policies and programs and operate within current law. And they can work to educate members of their community about their use of affirmative action as a principled policy response to widespread inequalities in higher education access and attainment," she said. "Campus leaders could counter the arguments claiming that affirmative action for underrepresented students is unfair to other students, as wrong -- largely because they rely on ideas about merit for college admissions based primarily on test scores. Fair college admissions practices need to be based on philosophies of college access, educational opportunity, and holistic reviews of applicants’ varied qualifications, and not solely or even primarily on quantitative measures of academic merit like standardized test scores."
Sarah Moore, a lawyer with the firm of Fisher Phillips who represents colleges on a range of issues, said via email that she believed colleges that base their policies on the Obama guidance should be able to survive legal challenges because, she said, the Obama guidance was in fact based on Supreme Court rulings.
That said, she too said that colleges should brace themselves to be challenged and that some may fear that possibility.
"Being entangled in a lawsuit defending that position is an entirely different matter particularly when the Justice Department has identified it has a priority of addressing these cases and prepared its resources accordingly," she said. "The anticipated aggressive pursuit of these cases by the Justice Department without any apparent consideration of providing higher education the considerable deference to which it is entitled according to our Supreme Court should not be easily dismissed. The fact is our colleges are in for a fight."
Moore said that she also thinks the Harvard lawsuit could have a big impact on the future of affirmative action in higher education, and said that colleges should work with lawyers now in reviewing their practices to be sure they are consistent with what the Supreme Court has said is constitutional.
"The Harvard case will be considerably important to the future of voluntary affirmative action programs in higher education," she said. "This will likely be the first case on this topic to be considered by a post-Kennedy court."
Although Supreme Court justices typically pledge not to upset settled law, the decisions favoring colleges' right to consider race in admissions should not be thought of by colleges as "carved in stone."
Moses said she is concerned about the Supreme Court reviewing the Harvard case with the court's new makeup. Before the Trump administration, she said, she would have assumed that courts would have just followed the past Supreme Court rulings. "With the Trump administration, we are seeing increasingly that research and evidence are not driving policy decisions, whether in the executive, legislative, or judicial branches of the federal government. So, the case could be heard by the high court and lead to a narrowing of the rules around race-conscious admissions policies," she said.
A Satire With a Point
Many admissions officers have said throughout the debate over affirmative action that it is false to assume that applicants can all somehow be evaluated in the same way, and that their backgrounds mean little in their chances of being admitted, or whether they have different backgrounds that should come into account.
The humor website McSweeney's picked up on this theme with a satire it published shortly after the Trump administration withdrew the Obama administration's guidance.
The piece listed "completely neutral, race-blind college admissions questions," such as "Did you have any family members who attended this college, or were your ancestors legally barred from formal education altogether?" and "Did you attend a criminally underfunded public school or one whose tuition exceeds the annual operating budget of Flint, Michigan?"