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The Trump Nominees and Affirmative Action

Diversity groups question Jeff Sessions’s record -- and some point to comments on race by Betsy DeVos. Senator is questioned on his views on undocumented students and shares laugh with colleague about objections from law professors.

January 11, 2017
 
Alabama Senator Jeff Sessions

Civil rights and diversity groups are stepping up their opposition to Alabama Senator Jeff Sessions's nomination for U.S. attorney general, citing among other concerns his record opposing affirmative action and minority protections. At the same time, statements from Betsy DeVos, President-elect Donald Trump's nominee for education secretary, are raising concerns among some about her commitment to understanding issues of race.

The Senate Judiciary Committee held its first confirmation hearing for Sessions Tuesday. It was the first chance Congress has had to directly question any of Trump's cabinet nominees about their record and views.

The American Association for Access, Equity and Diversity, a group that includes many higher education diversity officers, wrote to Senate leaders this week that the voting record compiled by Sessions in the Senate showed "evidence of a bias against efforts to promote equal opportunity for women, minorities, persons with disabilities and the LGBT community."

In addition to a history of votes against legal protections for women and minorities, the organization said Sessions has consistently opposed female and minority nominees from the Obama administration, especially those who have supported affirmative action.

"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," Sessions said in a 1997 statement quoted by the group in the letter.

Supporters of affirmative action say it is important to creating and maintaining diversity in higher education as one of a number of criteria for admitting students -- and that implying that affirmative action guarantees admission to anyone undercuts diversity efforts.

Shirley Wilcher, executive director of the American Association for Access, Equity and Diversity, said that record is relevant to college and university campuses because of the role the Department of Justice plays in enforcing and providing leadership on protections.

"He sets the tone and he is the primary enforcer, especially when it comes to public colleges and universities," she said. "If he turns a blind eye, we can only assume that other federal agencies will do the same."

The issue of affirmative action in particular is likely to surface in continued scrutiny of Betsy DeVos, Trump's nominee for education secretary. In arguing against a Michigan law allowing affirmative action in 2003, DeVos wrote in a Detroit News op-ed that "race is irrelevant and should be irrelevant."

Many college educators say race remains relevant in the United States and that such seemingly pro-equity statements suggest a lack of awareness or sensitivity.

The AAAED argued that Sessions's views on affirmative action are particularly concerning because they suggest as attorney general he would not offer a strong defense of those policies in federal court. Last June the U.S. Supreme Court upheld the consideration of race and ethnicity in college admissions in the case of Fisher v. the University of Texas at Austin.

The AAAED was joined in opposition to the appointment of Sessions Tuesday by NAFSA: Association of International Educators. Esther D. Brimmer, executive director and CEO of NAFSA, in written Senate testimony cited the senator's anti-immigrant stance, record on voting rights and fight to overturn a court ruling that found Alabama's public schools provided separate and unequal education to the state's children.

Archie Ervin, president of the National Association of Diversity Officers in Higher Education, said the group's leadership would meet this week and he expected discussions of cabinet nominees, including Sessions and DeVos, to be front and center. Ervin, who is also the vice president for institute diversity at Georgia Institute of Technology, said the group believes affirmative action as defined by the courts is critical to maintaining educational access for all Americans.

DACA

Sessions was asked directly by Senate colleagues Tuesday about his position on Deferred Action for Childhood Arrivals, the program established by President Obama that allows undocumented immigrants brought to the U.S. as children to receive temporary authorization to live and work in the U.S. Sessions suggested it would be possible to reverse DACA but also that it was unlikely that the first targets of tougher immigration enforcement would be students who have benefited from the executive action.

"It would certainly be constitutional, I believe, to end that order and I would -- the Department of Justice, I think, would have no objection to have a decision to ban that order because it is very questionable, in my opinion, constitutionally," he said.

At the same time, Sessions told Illinois Senator Dick Durbin, a Democrat, "we are not able financially or any other way to seek out and remove everybody that's in the country illegally. President[-elect] Trump has indicated criminal aliens, like President Obama indicated, certainly are the top group of people [for deportation]."

Michael Olivas, a University of Houston Law Center faculty member currently serving as interim president of University of Houston Downtown, said DACA would not fall within Sessions's jurisdiction as attorney general.

"I would hope that the confirmation process will vet the [Department of Homeland Security] secretary designate on this particular issue, which he would administer -- not DOJ," Olivas said.

Olivas, who said he was not speaking on behalf of the law school or the university, said protections for those undocumented immigrants -- many of them college students or recent graduates -- would not be easily unraveled and would remain in place until a formal action to rescind them.

Joking About Law Professors' Opposition

Sessions also shared a laugh with Senator Lindsey Graham, a South Carolina Republican, over a joke that may rankle some in academe. They both suggested that Sessions has nothing to fear from a letter signed by hundreds of law professors opposing his confirmation.

“We’re about to get an answer to the age-old question ‘Can you be confirmed attorney general of the United States over the objection of 1,400 law professors?’” Graham said. “I don't know what the betting line in Vegas is, but I like your chances.”

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