A Return to Racial Quotas in Admission?

In Bakke v. Regents of the University of California (1978), the U.S. Supreme Court ruled it impermissible to establish quotas based on students’ race in university admission. Subsequent rulings in Gratz and Grutter v. University of Michigan, Fisher v. University of Texas, and Students for Fair Admissions (SFFA) v. Harvard College and the University of North Carolina explored legal territory well beyond Bakke, but they each recognized quotas as impermissible. Yet the Trump administration seems determined to resurrect a quota of its own design.

In the SFFA cases, the Supreme Court ruling all but ended the possibility that a college might consider a student’s racial or ethnic heritage as something that could have an impact on their educational experience. Yet this ruling appears not to have satisfied the voracious demand for federal control over the racial composition of college and university student bodies. In its first three months, the Trump administration has made extensive claims about the reach and nature of the SFFA decision in an effort to impose new, extensive regulatory and investigatory shackles on colleges.

Through this effort, the administration has made clear, although not explicit, that it deems there is a threshold beyond which a university becomes a target of investigation if it enrolls too many Black or Hispanic students. Unsurprisingly, the Trump administration is closely aligned with SFFA and its director, Ed Blum, on the matter. As Inside Higher Ed reported in February,

The federal government has issued a spate of letters, guidance and investigations that fixate on the status quo. The Department of Education’s February frequently asked questions document, which is under a court-ordered injunction, notes that the Office for Civil Rights “may analyze different types of circumstantial evidence that, taken together, raise an inference of discriminatory intent” (emphasis added) as a basis for launching a punitive investigation.

Examples of such “circumstantial” evidence include “departure from normal procedures,” “statistics demonstrating a pattern of the policy or decision having a greater impact on members of a particular race” and “whether the school was aware of or could foresee the effect of the policy or decision on members of a particular race.” These ill-defined guidelines enable the government to wield the investigative power of the federal government at will, as the Department of Justice has with Harvard University and the University of California (where race has not been a consideration in admissions since 1996), with no public evidence of wrongdoing.

Together, these vague standards effectively freeze the current status quo, as any statistical departure from the current (or past) state of enrollment becomes a trigger for punitive action.

At core, the administration’s efforts seem to boil down to this:

• Highly selective institutions must enroll a minimum of X percent white students and are only allowed to enroll Y percent Black or Hispanic students.
• Moderately selective institutions must enroll a minimum of A percent white students and are only allowed to admit or enroll B percent Black or Hispanic students.
• Presumably, nonselective institutions may enroll whatever demographic mix they please.

Unfortunately for colleges, X, Y, A and B are variables known only to a handful of ideologues who are either part of or influential to this administration. As it stands, there is a good argument, based on a district court’s preliminary ruling on the administration’s anti-DEI executive orders, that its standard for enforcement is impermissibly vague.

The only way to solve this vagueness considering the administration’s current trajectory is to define X, Y, A and B, which—after nearly 50 years—brings us back to racial quotas. Will the Department of Education define those values that colleges should seek to meet? Or will it act on hunches based on its interpretation of university enrollments?

Either way, this administration has boomeranged back to where we started in 1978. Attaching enforcement standards to the current demographic composition of undergraduate enrollment will, to borrow a phrase from the First Circuit Court of Appeals, simply “turn ‘the previous status quo into an immutable quota.’”

The idea, too, that the presence of “too many” Black or Hispanic students at a selective college indicates that the institution must have run afoul of the law carries with it the insidious notion that Black and Hispanic students are, or must be, inferior to white students. On that tired, long-discredited basis, the administration appears poised to institute an unprecedented degree of federal intrusion into university admissions, using the very means their ideological backers declared so odious to their sense of right and justice.

In the SFFA case, the court held that Harvard and UNC’s admission policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points”—and therefore “cannot be reconciled with the guarantees of the Equal Protection Clause” of the Constitution. Much the same could be said of the Trump administration’s current approach to enforcement.