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Colleges, Universities Plan for Possible Assault on Affirmative Action

The flurry of public denouncements came quick. Some were bold and defiant.

Just as the announcement that the Trump administration was implementing an immigration ban drew the ire of administrators at colleges and universities across the nation, so too, did a media report that the Department of Justice was looking to go after universities that employ affirmative action in their admission processes.

In the days since The New York Times reported the story, colleges and universities—small and large—have been vocal in condemning any attacks on the more than five-decade policy aimed at leveling the racial playing field in higher education.

“Despite higher college enrollment rates overall, we see large gaps in the rates at which students from minority backgrounds enroll,” Dr. Gregory J. Vincent, president of Hobart and William Colleges wrote in a letter to his college community. “Despite Brown v. Board of Education and Title IV of the 1964 Civil Rights Act, we see students from minority backgrounds underrepresented in elite institutions of higher education. Until the problem of discrimination is no longer systemic, we will need systemic mechanisms—like affirmative action and holistic admission policies—to ensure that our friends and neighbors most vulnerable to discrimination are afforded the respect, dignity, support and equal opportunity to pursue an education.”

Vincent, who was vice president for diversity and community engagement at the University of Texas at Austin before his appointment to Hobart and William Colleges, played a central role in the 2015 U.S. Supreme Court case Fisher v. University of Texas, ultimately helping to secure a victory for affirmative action proponents.

To be fair, the DOJ issued a statement denying the allegations in a press statement.

“Press reports regarding the personnel posting in the Civil Rights Division have been inaccurate. The posting sought volunteers to investigate one administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior Administration left unresolved. The complaint alleges racial discrimination against Asian Americans in a university’s admissions policy and practices. This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general. The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”

Still, lawyers at colleges and universities across the nation spent last week strategizing with their chief diversity officers and presidents to discuss policies should the issue escalate.

“We’ve been getting so many mixed messages from this administration since Trump took office, so we are operating as if the media reports are true and that a full-fledged assault on affirmative action is imminent,” quipped a top lawyer at a large flagship public institution.

If the DOJ were to move forward with litigation, that would be a misguided step, said some legal experts.

“The notion that universities’ uses of affirmative action—already narrowly tailored over the last 40 years—constitute invidious discrimination is preposterous on its face,” said Amos Jones, a noted legal scholar and Washington-based civil rights attorney. “And it’s politically tone deaf for the Department of Justice to go down this rabbit hole, given that President Trump’s victory was due in part to considerable portions of the Black and Hispanic vote who gave him a shot as an opportunity-oriented president.”

In the world of academia, affirmative action has long been the subject of contentious debate dating back to the 1970s.

“We know since Bakke, in 1978, that there are educational benefits to diversity and many colleges and universities have already put a stake in the ground whether they’re going to use race in college admissions, and some are not,” said Dr. Stella Flores, an associate professor of higher education at New York University and an expert on affirmative action.

The 1978 case, University of California vs. Bakke, monumental because it manifested the legality of schools utilizing affirmative action as a method of achieving diversity on campuses, with the caveat that those efforts not lead to reverse discrimination.

When the U.S Supreme Court upheld the use of affirmative action in the case of Fisher vs. University of Texas, supporters remained hopeful that affirmative action would survive for years to come, despite the gradual rollbacks that had occurred in states like California and Michigan.

And while the high court sided against Abigail Fisher, who applied to the University of Texas at Austin in 2008—was denied acceptance into the school, and argued that her denial was because of her race—the recent appointment of Justice Neil Gorsuch to the Supreme Court almost ensures that the court will likely take up the case again.

The Supreme Court’s most recent ruling reaffirmed that affirmative action is constitutional if it serves to guarantee a diverse student body. Though affirmative action only serves as one factor among many that is weighed in a student’s admission to college, it is an individual factor that institutions are legally able to take into consideration.

“It’s not about using it as the only factor of consideration, but as one factor of consideration,” said Flores, who is also the director of access and equity at the Steinhardt Institute for Higher Education Policy at NYU. “It makes a student body more educational, it provides more opportunities for the individuals, but it is a benefit beyond the individual. The individual admission is a benefit for the entire campus.”

She said that students benefit from modern-day affirmative action, evidenced by the narratives of students who attend racially diverse campuses across the nation.

Despite the Trump administration’s alleged threats, Flores said that she sees no reason for academic institutions to change course.

“I think strong, well-grounded universities with good admissions practices should hold onto what they’re doing,” Flores said. “They know the law, they should keep performing within the structure of the law.”

Richard Kahlenberg, a senior fellow at The Century Foundation, a nonpartisan think-tank, said that despite the pending investigations, colleges and universities “will probably continue to pursue their current policies.”

Aside from using affirmative action, some schools have sought alternative ways of achieving racial diversity, and have focused their efforts on socioeconomics, said Kahlenberg.

“A number of universities began increasing the number of students they would accept from community colleges as transfers. Some increased their financial aid for economically disadvantaged students,” said Kahlenberg, who added that some other institutions have also terminated their use of legacy preferences for children of alumni, which “are all positive things.”

Still, the lawsuits are likely to continue against universities like the University of Texas at Austin.

“The United States Supreme Court reviewed this same admissions process through eight years of litigation in the case of Fisher v. The University of Texas at Austin. The Supreme Court upheld the constitutionality of the university’s admissions policy, affirming the university’s use of race and ethnicity as one factor in our holistic admissions process. The university believes in and will defend our admissions process, which has not changed since the ruling,” UT’s president, Dr. Gregory L. Fenves, said in response to a new lawsuit.  “UT’s pursuit of excellence is grounded in the university’s public mission to provide the highest quality education for every student. The educational benefits of diversity are essential to carry out that mission and prepare students to work in a competitive, global marketplace.”

Jamal Eric Watson can be reached at [email protected]. Gia Savage can be reached at [email protected]systemic

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