The Trump administration is removing Obama-era guidelines that encouraged higher education institutions to promote racial diversity in college admissions, telling colleges to ignore race while admitting students.
The new change, first reported by The New York Times, will allow colleges and universities to consider students in a race-neutral practice of student admissions, a longstanding demand by President Donald J. Trump. The new guidance will not have the force of law, but schools will presumably be able to defend themselves from lawsuits due to the administration policy.
In an official statement released today by the Department of Education’s Office for Civil Rights, the guidelines were revoked as going beyond constitutional protections.
“The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI. Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law. By suggesting to public schools, as well as recipients of federal funding, that they take action or refrain from taking action beyond plain legal requirements, the documents are inconsistent with governing principles for agency guidance documents,” the statement said.
U.S. Secretary of Education Betsy DeVos told The Globe Post that “the Supreme Court has determined what affirmative action policies are Constitutional, and the Court’s written decisions are the best guide for navigating this complex issue.” She said schools should continue to offer equal opportunities for all students while abiding by the law.
While affirmative action practices in higher education have been upheld as recently as in 2016 by a Supreme Court decision, the Trump administration has aimed toward scrapping the Obama administration’s guidelines for over a year.
“Last year, the Attorney General initiated a review of guidance documents, which resulted in dozens of examples — including today’s second tranche of rescissions — of documents that go beyond or are inconsistent with the Constitution and federal law,” Department spokesman Devin O’Malley told CNN. He noted that the Justice Department remains committed to enforcing the law and protecting all Americans from “all forms of illegal race-based discrimination.”
This decision comes at a time when the Justice Department is investigating racial discrimination allegations against Asian students in admissions at Harvard. Asian advocacy group Students for Fair Admissions said in their letter to a court that Harvard discriminated against them as a high-achieving group in giving preference to other racial and ethnic minorities for admissions. They claimed in their lawsuit that Harvard’s practices are equal to an “illegal quota system.” Their case is being investigated in parallel to another Asian-American case filed with the Department of Justice in 2015 against Harvard and its admissions policies.
Meanwhile, civil rights groups are labeling this move as an affirmation of the removal of civil rights inferred in the Constitution. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law told CNN that “The rescission of this guidance does not overrule forty years of precedent that affirms the constitutionality of a university’s limited use of race in college admissions. This most recent decision by the Department of Education is wholly consistent with the administration’s unwavering hostility towards diversity in our schools.”
This is not the first time the Trump administration scrapped Obama administration guidelines concerning civil rights. Last year, President Trump removed two guidelines concerning Title IX issued by the Obama Administration. The first revoked guideline allowed schools to prosecute sexual assault based on a “preponderance of evidence” rather than stricter guidelines. The second revoked guideline was the right of transgender students to use their restroom of choice on campus. The Department of Education proposes a new model for the protection of students instead of Title IX in the future.
With the upcoming retirement of Justice Anthony Kennedy, the Supreme Court will likely have a new opportunity to rule on affirmative action in education and set a precedent for college guidelines. Justice Kennedy was a swing voter in affirmative action cases and the deciding vote in the most recent 2016 decision to uphold consideration of race as a factor at the University of Texas regarding admissions.
