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Trump Administration Takes Affirmative Action to Ignore Race and Law

Emil Photo Again Edited 61b7dabb61239

In case you missed it: while you were celebrating all the progress we’ve achieved in America – 242 years of opportunity resulting in a burgeoning sense of equality and diversity – the Trump administration placed a cherry bomb in your inbox.

After the long holiday, the federal government under Trump would like you to think we’ve gone backwards in time, at least pre-Obama, as you get back into work today, especially when it comes to the use of race in admission in education. It’s like the Trump administration’s own affirmative action. It’s given college administrators a handy blindfold in red, white and blue.

In a joint memo from the Department of Justice and the Department of Education, essentially, you’re on your own when it comes to race and admissions.

“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,” the letter reads. “Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.”

One thing worse than an activist court is an activist justice or education department on the wrong side of the issue. So, what the new anti-guidance is saying is feel free to do your rightward, backward, anti-diversity thing. The Trump administration is looking the other way. It’s playing hardball on the southern border against mothers and their children.

The memo specifically says all the Obama administration policies that gave guidance on universities’ use of race as a factor will no longer be available on official websites. Looking for that Sept. 30, 2016 “Questions and Answers About Fisher v. University of Texas at Austin, aka Fisher II?”

Or the Dec. 2, 2011 “Dear Colleague Letter Regarding the Use of Race by Educational Institutions,” or it’s accompanying 2011 “Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools?”

Just two of seven documents now eviscerated from our institutional memory, like they never existed. Hope you kept a copy for nostalgia. You are now no longer under any pressure to consider race as a factor in admissions.

Of course, there are what I call the CPOC crowd, aka, the “Conservative People of Color,” who can’t help themselves but praise the move.

“I’ve always felt that acceptance to higher education should be merit-based and means-tested. I believe President Trump is wise to rescind the aggressive Obama-era affirmative action directive for the use of race in student admissions,” said Dr. Carol Swain, a former professor at Vanderbilt University and Princeton University, in a news release.

She was especially critical of the Obama policy guidance, which she said “places students in situations where they are doomed to fail, become embittered by rising debt and frustrated with the mismatch between abilities and expectations. There are better approaches to educating minority students that are more likely to lead them to their long-term success – and available at a much broader range of institutions.”


So don’t bother busting up all-White institutions to make them more diverse because we all can find better education in the South 40?

The critics of affirmative action always want to focus on the students and their failure.

Instead, anti-affirmative action advocates should look at the half-hearted institutional efforts that fail to support students given a hand-up.

Not much of a hand-up if the grip is less than a Trumpian handshake.

Still, anti-affirmative action folks shouldn’t be celebrating too heartily.

The Fisher case that allows the use of race in admissions is still the law.

So the administration’s both winking and gloating a bit here, telling folks go ahead and play dumb right now. Go color-blind without fear because without the guidance, you’re policy-blind, too.

And if you’re worried about Fisher and being sued, don’t.

I think that’s bad advice.

That’s even when the White House announces its second pick for the Supreme Court as early as Monday, likely a die-hard conservative who sees flames with the mere mention of abortion and affirmative action.

The administration’s gloating a bit with elimination of the Obama guidance. Anything to go after Obama, right.

But they forget that affirmative action has become such a legal battle that’s it’s always wrong to ever think of it as “settled” law.

Justice-seekers won’t stop fighting.

Most of us will be spurred on by the notion that things like preventing a woman’s right to choose, or abolishing a person’s right to marry, or withholding opportunities to women and people of color, will once again be up for discussion.

All that we fought and made illegal, may soon be legal again.

Emil Guillermo is an award-winning journalist and commentator who writes for the Asian American Legal Defense and Education Fund at  He’s an adjunct lecturer at San Francisco State University.

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