Trump Administration Reversing Policy Requesting Schools Consider Race as Part of Admissions

As part of an enormous reversal of Obama-era legal guidance documents earlier this month, the Justice Department has recently eliminated 24 separate federal guidance documents on a variety of issues–among these was several guideline documents for public schools and campuses to help constitutionally create racially diverse schools. The order reversing the 2011 guidance document was signed by the recently confirmed head of civil right for the Department of Education, Kenneth Marcus. Marcus is an outspoken opponent of affirmative action.

However, Marcus wasn’t alone in his criticism this time. The Justice Department described the guidance document as a tool to help schools skirt the law in implementing affirmative action. They described the documents the overturned as “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” They went further to describe the guidance as the executive branch attempting to circumvent Congress. In a joint statement with the Education Department they described the affirmative action guidance as “beyond the requirements of the Constitution.”

The head of the Department of Education, Betsy DeVos, was slightly less aggressive in her statement on the repeal. She instead fell back on the Supreme Court’s guidance on the issue, saying “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…Schools should continue to offer equal opportunities for all students while abiding by the law.”

Despite how harsh these words are regarding the guidance, the documents in question mostly contain information on Supreme Court rulings regarding affirmative action as well as suggestions as to how schools can offer programs promoting racial diversity while ensuring these programs and policies fall into the Supreme Court’s constitutional schema.

The repeal tacitly reverts the administration’s position on affirmative action to the previous Bush era guidance document–issued in the same manner as the Obama-era one. The old position encourages “race-neutral” methods for assigning students to schools. In other words, without affirmative action or diversity policies in place.

The administration’s actions aren’t as devastating to racial diversity in schools as it may sound or as they have been described in news on the topic. Guidance documents such as these don’t carry the force of law. However, they are the official stance of the federal government and are at least persuasive before a court.

What’s more, the administration’s move sends a clear message that affirmative action and diversity in schools is not a priority for this administration. What’s more, with the Supreme Court’s make up set to shift, this is a message with teeth. Let’s take a look at the guidance documents that have been overturned, the Supreme Court’s history on affirmative action, and what the future may hold on the topic.

The Obama Era Rules on Affirmative Action

The Obama era guidelines themselves were very simple. They focused on Supreme Court rulings over the decades, with a special emphasis on recent ones, and offered thoughts on how to comply with those rulings in setting up affirmative action and diversity policies–especially in K-12 public schools.

The guidance focused on the dangers and drawbacks of a racially isolated student body, offering this as a compelling interest to ensure racially diverse schools. This compelling interest language is important because such an interest on the government’s part is necessary for an affirmative action policy to be constitutional under Supreme Court rulings. The guidance documents suggested that, where possible, schools should strive to implement affirmative action and diversity policies.

Focusing specifically on some of the more recent Supreme Court rulings, and on a concurrence from those rulings by Justice Kennedy, the guidance documents suggested ways to go about structuring these policies to and how to consider race-neutral elements such as socioeconomic status, parent’s education, geography, and more. Where this fails, they presented the disadvantages of racial isolation as a legitimate interest–as supported by Justice Kennedy’s writings–sufficient to make an affirmative action or diversity policy constitutional.

What is Affirmative Action?

There’s a reason the Obama administration, and many other administrations, issued guidance on this issue. The Supreme Court has been developing their position on the matter for decades and has left a complicated and often hard to parse analysis in determining how to approach affirmative action.

To state the situation as simply as possible, an affirmative action policy must serve a compelling purpose. This can be hard to define, but certainly includes remedying past or present discrimination against the group affirmative action is favoring. However, being part of the group, the affirmative action policy favors generally can’t be the end of the analysis under a constitutional affirmative action policy.

Race, gender, etc must be plus factor among other factors in a larger consideration as opposed to a determinative element. This applies in both an employment and a school admissions context.  The Supreme Court has also ruled that states can outright ban affirmative action in the employment context; something which has happened in Arizona, California, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington. California has banned all affirmative action, including in college admissions.

This being said, the Supreme Court’s approach to the constitutionality of affirmative action has been much more complex than this ever since they first considered the idea back in 1978. The initial ruling allowed the “plus factor” analysis for affirmative action we’ve discussed above. However, the Supreme Court has since added to this in multiple rulings–banning racial quotas or racial balancing through affirmative action.

More recently, the Supreme Court has been less favorable to the practice, requiring that no workable race-neutral alternatives be available. Justice Thomas has written in concurrences that he is in favor of doing away with all race-based admissions considerations. The Court has heavily hinted that they may overturn their precedent supporting administration if asked to address the ruling directly.

You may have noticed above several references to Justice Kennedy’s writings on the topic specifically. This is because, while he is not an out and out supporter of affirmative action, he generally provided a crucial swing vote in support of narrowly tailored race-based college admissions policies.

As recently as 2016, Justice Kennedy authored an opinion in support of affirmative action when he shot down Abigail Fisher’s challenge to University of Texas affirmative action policies. He wrote that “considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” He also noted that “it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity,”

What Will This Mean for Affirmative Action Going Forward?

This rollback on affirmative action guidelines is a signal which will embolden suits challenging the constitutionality of affirmative action as a premise. What’s more, with Justice Kennedy’s upcoming retirement, and eventual replacement, will likely remove a swing vote on the issue and replace it with a more conservative presence. Affirmative action is in a tentative legal position and may well see a serious pruning in terms of its constitutional limits in coming years.

As we speak, a hotly anticipated case involving Asian-American students who allege that Harvard excluded Asian-American applicants to create space for students of other races is a challenge to affirmative action that will almost certainly reach the Supreme Court. What’s more, it will certainly reach the Supreme Court after Justice Kennedy has left his position. It is very likely a replacement will have been appointed by then.

To deny the United States’ history and present issue with racial discrimination is to ignore our past and clear evidence in front of our eyes. These affirmative action policies are in place for good reason and encouraging diversity is something to be embraced. However, the signals are there–affirmative action will likely see Supreme Court cases challenging its legality and it will likely see it in the next few years.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure.