The New York Times reported yesterday that the Trump Administration is planning to attack affirmative action. The Times noted that it received an internal announcement from the U.S. Department of Justice, Civil Rights Division, which sought attorneys to explore “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
As with many other issues, Trump has flip-flopped on affirmative action, taking whichever position is politically expedient. During his Republican primary campaign, he stated on “Meet the Press” that he was “fine with affirmative action.” And after the oral argument in Fisher v. University of Texas at Austin II (2015), Trump criticized remarks by the late Justice Antonin Scalia which questioned the utility of race-conscious admissions policies.
Of course, few people took these statements seriously. It is not surprising that, in the wake of Republicans’ failure to repeal the Affordable Care Act and the Trump Administration’s many other problems, Trump wants to distract us from the GOP’s many shortcomings. Last week, he tweeted out a proposal to ban transgender individuals from serving in the military. This week, his administration leaks its plan to challenge race-conscious university admissions policies. Trump is thus pursuing a long-standing Republican strategy of appeals to bigotry and racial animus.
This development raises red flags for universities even higher. Affirmative action has long been a charged and divisive issue. In June 2016, the U.S. Supreme Court upheld the use of race in college admissions by a 4-3 vote in Fisher II. Justice Anthony Kennedy surprised many observers, including me, by voting in favor of University of Texas at Austin (UT) race-conscious admissions plan. Kennedy had never before voted to uphold such a policy, but he continued a general trend of swing Justices casting surprising votes in such cases. In Regents of the University of California vs. Bakke (1978), Justice Lewis Powell voted to strike down UC Davis Medical School’s set-aside plan for minority students, but he did note in his concurrence that universities could use race as a “plus factor” in admissions. Twenty-five years later, in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor endorsed the University of Michigan Law School’s flexible, holistic policy, writing the majority opinion in a 5-4 ruling. Like Kennedy, Justice O’Connor had never before voted to uphold a race-conscious policy. Fisher II had given conservatives hope to overturn or seriously curb back Grutter, and they were very disappointed with the ruling.
Nevertheless, although Fisher II left in place Grutter’s core framework for race-conscious university admissions, by no means did Justice Kennedy give universities a free pass. To the contrary, his opinion made clear that UT has an “ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.” Kennedy acknowledged that in the past, UT “had no reason to keep extensive data”—but he made clear that this was no longer the case.
Here is where the Trump administration could have its major impact. The burden is on universities to show that they really need to use race and that “race-neutral” admissions criteria, such as socioeconomic status, will not produce sufficient diversity. UT met this burden, as data show that Texas’s Top Ten Percent Law is insufficient in this regard. But in the future, the Trump Administration could challenge UT and other universities on the necessity of using race. It could find that universities are not sufficiently justifying their need, prompting more lawsuits. Moreover, simply compelling universities to release information could spur such lawsuits, as opponents of affirmative action can always spin such data to argue that a university’s race-conscious policy is unconstitutional.
While I do not think that universities will abandon their race-conscious admissions policies directly in response to the Trump Administration’s proposed attack, they will feel more pressure and have to think more carefully about how to defend these policies. During the Obama Administration, the Civil Rights Division issued guidance to help universities make sure their race-conscious admissions policies were constitutional. Trump's Justice Department could effectively do the opposite: tell universities that their policies are unconstitutional and should be eliminated. More than ever before, universities need to be firm, diligent, and proactive in defending their admissions policies and ensuring that their student bodies are racially diverse.