Last week, the New York Times reported that the Trump administration plans to redirect Justice Department resources to investigating and suing colleges and universities that practice affirmative action on behalf of African American, Latino, and other minority applicants. Yet the Supreme Court has repeatedly, albeit narrowly, upheld such programs so long as they do not impose so-called quotas. It may be tempting, therefore, to dismiss the latest report as simply another effort by President Trump and Attorney General Sessions to feed red meat to their base of disenchanted white voters. However, the policy shift holds potentially dangerous consequences for colleges and universities throughout the country.
The Legal Status of Affirmative Action
The Supreme Court first addressed the legality of race-based affirmative action in college and university admissions in the 1978 Bakke case. Justice Lewis Powell steered a middle course, ruling that applicants could not be put into separate categories based on race but that race could be a so-called plus factor in the evaluation of individuals, much in the way that geographic diversity or varsity athletic potential could be. Although Powell spoke only for himself in that case, his view became the law in 2003 when it was adopted by a majority of the Court in a pair of cases involving the University of Michigan. The high Court reaffirmed that position just last year in a case involving the University of Texas.
Thus, so long as colleges and universities adhere to the plus-factor-but-not-quota approach—as they have done now for nearly four decades—they would appear to have little to fear from the new policy.
Yet the Bakke line continues to be controversial. The Supreme Court decisions upholding the University of Michigan Law School and the University of Texas undergraduate admissions programs were both 5-4. Conservatives on the Court have long argued that any departure from “color-blindness” is illegal. Perhaps the Justice Department is hoping to tee up a new test case to reach the Supreme Court after President Trump has an opportunity to fill a future vacancy.
That prospect should be alarming to defenders of affirmative action, but it existed even prior to the Justice Department’s adoption of a new litigation policy. Lawsuits pending in the lower courts already hold the potential for bringing about a wholesale change in the law.
An anti-affirmative action group called Students for Fair Admissions (SFA) has brought separate lawsuits against Harvard and the University of North Carolina, challenging their admissions criteria. The lawsuits allege that Harvard and UNC use race as a de facto quota, not as a plus factor. They thus claim that Harvard and UNC act illegally under current Supreme Court precedents.
However, it is plain that SFA’s ultimate goal is the elimination of all race-based affirmative action in higher education. Either case—or some future one—could be the vehicle for achieving that goal in the event of a change in Supreme Court personnel.
DOJ Investigation and Litigation
While the pending litigation already poses a threat to affirmative action in higher education, the participation of the Justice Department on the side of the plaintiffs would make that threat more severe. The Justice Department could intervene or file amicus briefs in existing litigation. It could open investigations in response to complaints by private applicants who lack the resources to file their own lawsuits. And it could use the resources of the national government to bring lawsuits against multiple colleges and universities.
The risk applies to private as well as public colleges and universities, because in the Bakke case the Court held that Title VI of the 1964 Civil Rights Act imposes the same obligations on recipients of federal funds that the Fourteenth Amendment’s Equal Protection Clause imposes on state institutions. That’s why Harvard, a private university, is already subject to the same legal risk as the University of North Carolina, a public one.
The Trump administration has another tool at its disposal: funding cutoffs. The administration has already threatened to cut funding to so-called sanctuary cities, but while those threats are of dubious legality because they have not been authorized by Congress, Title VI expressly permits the executive branch to terminate federal funding to grant recipients (which means just about all public and private colleges and universities) following notice and a hearing to determine whether the recipients are complying with the law. Even the threat of funding cuts could be used by the Trump administration as leverage to induce colleges and universities to change their admissions policies.
The Real Agenda
Whether the Justice Department pursues any of these courses of action remains to be seen. The Times did not publish the underlying document, which may merely assign internal responsibility among different actors within the Justice Department or between Justice and the Department of Education. Moreover, perhaps the Trump administration will prove as inept at combating affirmative action as it has proven in other domains.
That said, colleges and universities underestimate the risk they face at their own peril. Whatever anger President Trump feels towards Attorney General Sessions over the latter’s (quite appropriate) recusal from the Russia investigation, the two are on the same page when it comes to affirmative action. Neither the Alabaman who was denied a federal judgeship three decades ago because of concerns that he opposed civil rights nor the real-estate-developer-turned-reality-TV-star who became president thanks to support from racists sees any downside to attacking affirmative action. The attack may be intended mostly to satisfy Trump’s base, but given the slim Supreme Court majority for upholding affirmative action, the administration policy has a real chance of changing the face of higher education in the United States.
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Amen.