The Justice Department has begun investigating affirmative action policies at Harvard and the University of North Carolina to determine if they discriminate against white applicants. This investigation conveniently overlooks the most significant affirmative action policy at universities, one that overwhelmingly benefits white applicants: legacy admissions.
The DOJ’s assault on affirmative action programs at American colleges, combined with its indifference toward legacy admission policies, reveals a department driven by the belief that white people are the primary victims of racial discrimination. That position is of a piece with Republicans’ long-standing opposition not just to affirmative action programs that benefit people of color, but to civil rights legislation as a whole. And it demonstrates the persistence and power of the idea of “reverse discrimination.”
More than any other modern U.S. president, it was Ronald Reagan who cultivated the concept of so-called reverse discrimination, which emerged in the 1970s as a backlash against affirmative action in public schooling as court-ordered busing grew throughout the country. During these years, a growing number of white Americans came to believe civil rights programs and policies had outstretched their original intent and had turned whites into the victims of racial discrimination.
Affirmative action policies, particularly in education, became the primary target of this complaint, and by the end of the Seventies, the Supreme Court began to hear regular challenges to these programs. In 1978, affirmative action opponents won their first victory in Regents of the University of California v. Bakke, which outlawed a race-conscious admissions policy for the medical school at the University of California at Davis.
Opponents of affirmative action found even more support among conservative officeholders. In the 1980s, the Reagan administration began to roll back civil rights protections and legally designated targets for affirmative action hires, thus bringing the politics of reverse discrimination to the White House. Under the now familiar banner of “Let’s Make America Great Again,” Reagan campaigned vigorously against affirmative action in 1980, promising voters he would overturn policies that mandated, in his view, “federal guidelines or quotas which require race, ethnicity, or sex . . . to be the principle factor in hiring or education.”
Once in office, Reagan’s Justice Department backed cases that challenged affirmative action programs in hopes of eliminating them entirely. The Supreme Court proved uncooperative, however, and repeatedly ruled in favor of existing programs, both in college admissions and job hiring.
In the absence of legal support, Reagan’s assault on affirmative action required political cunning. The president established a two-pronged approach to circumvent existing civil rights laws. First, his administration simply stopped enforcing laws of which it disapproved. Reagan’s secretary of labor, for example, implemented new federal compliance guidelines that exempted as many as 75 percent of companies contracting with the federal government from previously mandatory affirmative action programs.
Second, Reagan fundamentally restructured the composition of federal courts and the government’s civil rights enforcement apparatus, which included the Justice and Labor departments and the Commission on Civil Rights. Reagan removed affirmative action supporters from their posts and re-staffed a significant portion of the DOJ and the Commission on Civil Rights with people like William Bradford Reynolds, the head of the Justice Department’s Civil Rights Division, who opposed existing civil rights law.
Under Reynolds’s leadership, the DOJ continued to pursue cases that might ban affirmative action policies once and for all. This was part of a broader attack on civil rights protections. The DOJ promised to no longer impose numerical goals or timetables for the hiring of women and people of color at businesses and government agencies. At the same time, the Civil Rights Division ignored violations of the Voting Rights Act, while Clarence Thomas, then the chairman of the Equal Employment Opportunity Commission, stopped using class-action suits to enforce affirmative action hiring programs.
In so much as Reagan cared about a civil rights issue, it was not school integration or affirmative action but rather reverse discrimination against white men. Though the rhetoric of reverse discrimination preceded the Reagan presidency and had spread considerably among affirmative action opponents in the years before his election, it was the Reagan administration that first enshrined such assumptions in policy.
The Trump administration promises to enhance these policies. President Trump has borrowed a page from Reagan by appointing Jeff Sessions, a longtime opponent of the Voting Rights Act, to the position of attorney general. Under Sessions, the DOJ promises once again to work to undermine civil rights law by vociferously opposing reverse discrimination.
If the actions of the Justice Department during Reagan’s first term are any indicator, the recent news about the Justice Department’s selective interventions in college admissions points toward a continued and expanding effort by the DOJ to limit access to higher education for people of color. Those efforts are part of a broader anti-civil rights push by the DOJ, which includes “pulling back” investigations into police violence, rescinding DACA protections for undocumented immigrants brought to the United States as children, and remaining silent amid recent calls from the president to expand his travel ban.
As in the Reagan era, the Justice Department today can roll back civil rights protections as easily as it can extend them, and as such, must remain at the center of any anti-racist struggle against the politics of white supremacy.