Earlier this week, the New York Times reported that the Justice Department is planning a civil rights initiative to investigate and sue universities over affirmative action admissions policies viewed as discriminating against white applicants. The DOJ said Wednesday the effort was actually aimed at addressing specific complaints filed by Asian Americans in 2015.
The project raises important questions about the legal landscape of race-conscious admissions policies, including affirmative action. But let's start with a simple yet essential one: Does the Justice Department have the legal grounds to make a case against universities?
The answer: Well, yes.
To understand the legal landscape in which the Justice Department's program would operate, we have to start with the Supreme Court's 1978 ruling in the Regents of the University of California v. Bakke case. Allan Bakke sued the medical school at the University of California at Davis after being rejected twice. Bakke, who is white, argued that he was denied acceptance solely on the basis of his race because of the school's policy of designating 16 slots for qualified minority students. The school set aside the slots to account for the long history of minority exclusion from the medical field. The court ruled that these kinds of racial quotas violated the 1964 Civil Rights Act. But the court also ruled that schools could use race as a factor in admissions decisions.
So to sum up — Quotas: no good. Race as an admission criteria: all right.
The court upheld that decision in 2003 in Grutter v. Bollinger. Barbara Grutter, who is white, sued the University of Michigan law school after she was denied admission. The school used race as a factor when making its admissions decisions, arguing it had a “compelling interest” in creating a diverse student body. The courts agreed and ruled 5 to 4 that the law school's consideration of race does not violate the Equal Protection Clause of the 14th Amendment.
In summary: Taking race into account is okay when considered alongside many other criteria, because diversity in schools has educational benefits.
In 2016, the Supreme Court ruled again that race can be used as one of many factors in determining admission into higher education because schools have a “compelling interest” in creating a diverse student body. In this case, Abigail Fisher, who is white, sued the University of Texas after she was denied entrance. The university has a policy of admitting the top 10 percent of all high school freshmen in the state but found that the demographics of the admitted students did not match the demographics of the state. To address the disparity, the school decided to consider race as a factor in determining admission for the rest of the student body. In June 2016, the Supreme Court sided with the university in Fisher v. University of Texas when it ruled, 4 to 3, that the university's race-conscious admissions policy was constitutional.
Again: Race as a factor is okay, but schools must be able to demonstrate that the reason for using race is both “constitutionally permissible” and “necessary.”
So the Fisher case did not settle the debate over affirmative action for good. After the ruling, Roger Clegg, president of the Center for Equal Opportunity, which supports race-blind policies, told the New York Times that the Supreme Court decision “was only a temporary setback.”
“The court’s decision leaves plenty of room for future challenges to racial preference policies at other schools,” Clegg told the Times. “The struggle goes on.” And so here we are, one year later, still struggling with what role race should play in college admissions.
In addition to the Justice Department's initiative, two cases challenging race-conscious policies are pending against Harvard and the University of North Carolina at Chapel Hill. The central argument in both cases is that the school's race-conscious admissions policies discriminate against Asian American applicants.
It is important to note that at the center of the cases at Harvard, UNC and UT is one figure: Edward Blum. He is a one-man legal team who has dedicated his work to dismantling race-conscious policies. He runs the Project on Fair Representation and is president of Students for Fair Admissions, the organization suing Harvard and UNC. Blum's organization financed both the Abigail Fisher case and the Supreme Court decision that struck down a section of the Voting Rights Act of 1965. In the 2013 ruling, the Supreme Court eliminated the requirement for states with a history of voter discrimination to receive approval from the U.S. attorney general before they can redistrict or amend their voting laws.
With the two pending legal cases, Blum continues his mission “to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” Lyle Denniston, a reporter who has covered the Supreme Court for 59 years, argues in an overview of the cases he wrote for the Supreme Court of the United States blog that the Harvard and UNC lawsuits are intended to bring the saga over the use of race in admissions to an end, for good.
“The lawsuits do not ask the courts to abandon the idea that racial diversity among college students is a valid educational goal,” Denniston wrote. “Instead, they contend that diversity can be achieved by race-neutral alternatives, so public colleges and those that receive federal funds should be ordered to end, altogether, any use of race in the process.”
Essentially, both cases assert that neither Harvard nor UNC can pass the test that using race in admissions is both necessary and constitutionally permissible. Additionally, Denniston points out that both cases seem to take aim at the Bakke case, by suggesting that the “Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs.”
So the Justice Department's decision to go after schools it has deemed as using policies that effectively discriminate against white applicants is just part of a long tradition of legal cases challenging the use of race as a factor in admissions. The argument at the center of these cases is that civil rights laws protect everyone against discrimination. So if white students or Asian American students are being denied entrance to college because of a race-focused policy, that is grounds for legal intervention.
The initiative seems consistent with Attorney General Jeff Sessions's views on affirmative action. During his confirmation hearing, the American Association for Access, Equity and Diversity (AAAED) submitted a letter to the Senate urging its members to reject Sessions as a nominee. As part of its argument, the AAAED cited Sessions's statements on affirmative action. In 1997, Sessions reportedly told the Senate Judiciary Committee that affirmative action was a “very, very difficult subject.”
“We certainly want to reach out and make sure that every minority individual has full chances and rights in America. But when we make that a part of a legal requirement of this nation, that the benefits and privileges of belonging to each American should be dispensed because of what group you belong to, and according to certain complex formulas of race and gender and those kind of things, we get into very troubling issues,” Sessions said then. “I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race.”
This post has been updated.
An earlier version of this story incorrectly stated that news of the new administration initiative was first reported on July 25. It was first reported by the New York Times on August 1.