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2 Groups Brace for Anticipated New Challenge of Affirmative Action

Two organizations are interpreting a U.S. Department of Justice letter as “proof” that the department is hellbent on challenging affirmative action. The letter was a response to their Freedom of Information Act request for information about departmental plans to investigate admissions policies and practices at Harvard University.

Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law.Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law.

The two groups — American Oversight and the Lawyers’ Committee for Civil Rights Under Law — put out a joint statement that the DOJ letter had “confirmed” that it is looking into Harvard University’s affirmative action program.

In fact, the letter does not mention Harvard. However, since the organizations requested information concerning investigations into Harvard as well as the University of North Carolina at Chapel Hill, it was seen as confirmation when the DOJ said it had no records of any investigation into UNC, but did not deny that records exist for a Harvard investigation. The DOJ claimed it was legally exempt from having to release any records of its investigations into admissions practices because it could impede its efforts to enforce the law.

The organizations sought the information after news reports indicated that the DOJ was seeking lawyers interested in working on a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The DOJ later stated that the posting sought volunteers to investigate an unresolved administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that alleged racial discrimination against Asian Americans in a university’s admissions policy and practices.

Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said the DOJ’s response confirms that the DOJ has “launched an unprecedented assault on efforts to promote racial diversity in higher education.”

“We deem this investigation as a threat to diversity in the college setting,” Clarke said in an interview with Diverse.

“The mere fact that they have identified this as a priority and opened up at least an inquiry into one of the nation’s most preeminent school’s affirmative action policies could invite other colleges and universities to gut their affirmative action policies to avoid the risk of the federal government coming down on them, too.”

Instead of investigating affirmative action, Clarke said the DOJ should be “speaking up” about the underrepresentation of racial minorities on American colleges and universities.

“What we have is a justice department that is suggesting the way that colleges work to promote diversity on campus may violate the law and that’s deeply troubling,” Clarke said.

“This is further proof that Attorney General Sessions and the Trump administration will continue to invoke civil rights only to further their own political agenda – not to provide equal protections for all Americans,” Austin Evers, executive director of American Oversight, said in a statement. “It speaks volumes that Jeff Sessions’ Justice Department is prioritizing attacking affirmative action at a time when white nationalists are marching openly in the streets.”

Scholars offered varied views on whether and the extent to which the DOJ might be looking to dismantle affirmative action, or whether its investigation of discrimination against Asian Americans at Harvard is genuine and warranted or politically motivated with ulterior purposes.

Dr. Natasha Warikoo, associate professor of education at Harvard and author of “The Diversity Bargain: And Other Dilemmas of Race, Admissions, and Meritocracy at Elite Universities,” said the issue is complicated because of the way the original complaint is structured.

“There might be a reasonable claim about whether Asian Americans are being held to a higher standard than Whites,” Warikoo said. “The problem is it’s being tied to affirmative action in a very problematic way, saying, ‘Oh, it’s because affirmative action,’ but really these are two completely separate issues.”

Warikoo said American Oversight and the Lawyers’ Committee on Civil Rights Under Law have “rightly” understood that the complaint is being used as a way for conservatives to “take a back door into attacking affirmative action.”

“Why is it suddenly this administration cares about supposed racial discrimination issues but in every other race issue, they want to say it’s identity politics and we’re color blind,” Warikoo said. “I think [the organizations] are right to be skeptical.”

Dr. Neal P. McCluskey, director of the Center for Educational Freedom at Cato, a libertarian think tank, had a different take.

“It seems to me that there is enough evidence that Harvard could be discriminating based on race that it is not obvious that the Trump administration is investigating ‘only to further their own political agenda,’” McCluskey said. “Of course it is impossible to separate government from politics, and that is a good reason to keep taxpayer money out of higher education, but it is also quite possible the administration is acting on principle, not for political gain.”

Jamaal Abdul-Alim can be reached at [email protected] or you can follow him on Twitter @dcwriter360.

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