The Trump administration on Tuesday rescinded guidance issued by the Obama administration on how colleges can legally consider race and ethnicity in admissions decisions.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 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.