Hinting at a new legal battle, the Trump administration is reportedly directing the Justice Department’s civil rights division to investigate and sue universities over affirmative-action admissions policies deemed to discriminate on racial grounds — “intentional race-based discrimination,” as an internal department memo put it. But as long as the current law remains, the Justice Department faces an uphill battle.
The department hopes to allege that by factoring race into college admissions decisions, universities are violating the civil rights of white and Asian applicants who are denied admission. But their case will be incredibly difficult to make. Affirmative action in college admissions uses race in quiet and indirect ways — treating race as one of several factors in a holistic review of applicants instead of the “predominant factor” — making claims of direct discrimination against individual applicants nearly impossible to prove.
This is no coincidence; in fact, it’s this very ambiguity that has historically kept affirmative-action programs safe in court. Programs have survived past constitutional challenges in part because they do not specify which individuals benefit from them and how much benefit those individuals receive.
In the landmark 1978 case Regents of the University of California v. Bakke before the Supreme Court, Justice Lewis Powell emphasized the value of holistic and individualized review out of concern for fairness to individual applicants. Setting aside seats for racial minorities was improper because it failed to “treat each applicant as an individual in the admissions process.” Instead, Powell allowed all students to bring “diverse” experiences or viewpoints into a classroom without specifying who benefited from racial preferences and by how much.
Bakke also made the use of race in admission decisions less explicitly numerical. A university could no longer seek a “simple ethnic diversity” in the form of a racial quota, and it had to consider racial or ethnic background as only one element in the selection process without allocating a specific weight to race. Thus, affirmative-action programs were set up to keep the racial elements of their consideration ambiguous going forward.
Just last June, the Supreme Court in Fisher v. University of Texas upheld the use of race in admissions decisions by the University of Texas at Austin. In describing UT-Austin’s admission program, Justice Anthony M. Kennedy emphasized that “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.” He added that “race, in this indirect fashion, considered with all of the other factors … can make a difference to whether an application is accepted or rejected,” thus allowing individualized consideration.
As long as race-neutral programs fail to deliver a racially diverse student body and universities consider race indirectly and applicants individually — as they currently appear to do — affirmative action is safe. The Justice Department cannot rely solely on gaps in enrollment statistics, test scores or dropout rates among racial groups to demonstrate unconstitutionality.
True, courts make inferences about whether a program operates as a racial quota by looking at the percentage of minorities enrolled at a college over time. But in the 2003 case Grutter v. Bollinger, changes from year to year in minority enrollment were enough to demonstrate that an admissions program was not a racial quota in disguise. Even a statistically significant relationship between race and admissions rates did not make race the “predominant factor” in admissions.
As I have explained elsewhere, last year’s Fisher decision offers important lessons for how universities should implement their admissions programs within constitutional constraints. Given the political climate, universities’ ability to maintain affirmative-action programs will depend on their ability to grasp and apply these principles.
Universities should define diversity in broad and inclusive terms. Where universities seek to measure only racial and ethnic diversity, they may leave disappointed applicants with the impression that particular groups have gained unfair advantage and fuel resentment among disfavored groups. Universities should also avoid measuring diversity in strictly numerical terms, as required by Bakke. The legal prohibition on quotas does not rule out some relationship between numbers and achieving the educational benefits of diversity, but that relationship should remain implicit and imprecise.
None of this means that affirmative action is immune from constitutional challenge. But for now, the law is clear: The Constitution allows limited, indirect uses of race in college admissions. And the same indirection that makes affirmative action constitutional should also keep it safe from Jeff Sessions.