DOJ “Would Better Serve Students by Focusing on Legitimate Threats to Students’ Civil Rights”

BY NEAL H. HUTCHENS

Today, Neal H. Hutchens, member of the AAUP Litigation Committee and professor of Higher Education at the University of Mississippi, published this column in Hechinger Report:

Last week, the idea of a potential move by the U.S. Department of Justice received swift pushback from supporters of affirmative action in higher education, including the American Association of University Professors.

The New York Times reported that the Justice Department was planning to investigate and sue colleges and universities using race in admissions. As reported, the goal was to uncover discrimination against white applicants seeking acceptance to colleges and universities that operated race-conscious admissions programs.

After the Times published its story, the Justice Department announced that it has no plans to launch an overall initiative to challenge race-conscious admissions policies, saying the issue was a job announcement and investigation related to a specific complaint against Harvard University alleging the use of racial quotas in limiting the enrollment of Asian students.

Given the contents of the memo obtained by the Times, only time will reveal if the Justice Department intends to take widespread action against colleges and universities that use race in admissions. In any case, the incident highlights the Justice Department and civil rights issues, including in educational contexts.

In the case of affirmative action, any effort to investigate and sue institutions over race-conscious admissions practices would needlessly wade into a well-settled area of law where colleges and universities must already satisfy a high legal burden.

More broadly, a narrative of widespread discrimination against white students in admissions would fit into a larger pattern of inattention from the Trump administration to students facing actual civil rights threats on their campuses and beyond on the basis of their race, ethnicity, religion or sexual orientation.

Affirmative Action: A Well-Established Area of Law

Ever since the U.S. Supreme Court declared affirmative action to be constitutional in 1978’s Regents of the University of California v. Bakke, it has periodically affirmed that colleges and universities may use race as one factor among many to achieve the educational benefits of a diverse student body.

In 2003, the high court upheld the affirmative action admissions policy of the University of Michigan Law School’s Grutter v. Bollinger.

More recently, in Fisher v. University of Texas at Austin, the Supreme Court again approved of reliance on race as a factor in admissions in two decisions (Fisher I and Fisher II).

As established in Fisher and in previous cases, the use of race-conscious admissions by a college or university must satisfy demanding legal criteria.

Governmental classifications based on race, including in admissions, are subject to strict scrutiny, an exacting standard of legal review. As such, colleges and universities that use race-conscious admissions must meet several requirements.

First, enrollment quotas based on race are not permitted, and institutions must engage in individualized, holistic review of applicants, in which race may constitute only one, among multiple factors, relied upon in admissions decisions.

Second, institutions must be able to demonstrate that they have considered race-neutral options and found them insufficient to achieve diversity goals.

Finally, all students (including white students) are the intended beneficiaries of race-conscious admissions programs.

Stringent legal rules on race in admissions have already been put in place by the Supreme Court. In addition, this is an area with modest application in higher education, as it tends to be used at colleges and universities with more selective admissions policies. Furthermore, eight states ban race-conscious admissions in higher education.

The Justice Department would better serve students by focusing on legitimate threats to students’ civil rights. The Southern Poverty Law Center tracked an alarming upswing in incidents of violence, harassment, and intimidation against individuals based on their race, ethnicity or religion during the political ascendency of Donald Trump. The Southern Poverty Law Center found that the largest number of incidents took place in higher education institutions and elementary and secondary schools.

Additionally the administration has contributed to fear and legal uncertainty for undocumented students who were provided legal residency status under the Deferred Action for Childhood Arrivals program.

Even as the Trump administration undercuts civil rights protections in multiple areas, hopefully the reports over an effort to challenge race-conscious admissions will turn out to be a false alarm.

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