Trump Rescinds Obama-Era Policies on Affirmative Action

This post was updated at 4:10 p.m. Tuesday, July 3. 

In its latest rollback of President Obama’s education policy legacy, the Trump administration wants school superintendents and college presidents to aim for “race-blind” admissions standards.

“The executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law and — in some instances — stays on the books for decades,” Devin M. O’Malley, a spokesman for the U.S. Department of Justice, told The New York Times.

While critics say the rollback will undo valuable efforts to improve campus diversity at both the K-12 and higher education levels, the action was praised by conservative pundits, who called it a welcome course correction after eight years of federal overreach.

“It was the Obama administration pushing the limits on civil rights policy, here as with (student) discipline,” tweeted Michael Petrilli, the president of the Thomas B. Fordham Institute, a Washington, D.C.-based think tank.

The reversal to advocating “race-neutral” admissions processes – the U.S. Department of Education’s position during President George W. Bush’s tenure — comes less than a week after the announcement of the retirement of Supreme Court Justice Anthony M. Kennedy.

President Obama had called for race to be considered as a factor in making admissions decisions with an eye toward boosting campus diversity. But Attorney General Jeff Sessions argued earlier this year that the Obama administration guidance went too far.

Reversal Comes as Justice Kennedy Exits

“Race-conscious admissions” is practiced at many of the nation’s top colleges and universities, and the approach was upheld in 2016 by the U.S. Supreme Court in the Fisher v. University of Texas at Austin decision.

As Adam Harris wrote for The Atlantic, the policy shift won’t necessarily mean big changes for most schools:

“To be clear, the way that race is legally allowed to be used in admissions is already extremely limited, and not all schools, colleges or otherwise, use it. Some states, such as California, have already made it illegal to use race as a factor for all grade levels. And, across the country, even when race is used in admissions considerations, it is generally used in very narrowly defined ways.”

But, as The Chronicle of Higher Education’s Andy Thomason explained Tuesday, “the pending retirement of the court’s swing-voting justice and author of the Fisher opinion, Anthony M. Kennedy, has thrown the legal framework that allows race-conscious admissions into doubt. With a more conservative justice filling Kennedy’s shoes, the court would very likely look less favorably on a Fisher-like case, should one appear on its docket.”

It wasn’t immediately clear what impact the federal action would have on college admissions officers’ decisions this fall. Civil rights groups immediately criticized the move, and some college officials tweeted or announced plans to keep working to improve the racial diversity of their student bodies. Among them — Don Heller, provost of the private University of San Francisco:

Sorry, @RealDonaldTrump and ⁦Jeff Sessions, but affirmative action in higher ed admissions is still legal in this country, so we are still going to apply it https://t.co/dADNTpEFlF

— Donald E. Heller (@Donald_E_Heller) July 3, 2018

As for Kennedy’s influence on affirmative action law in the K-12 arena, that can be traced back to a 2007 Supreme Court decision that “sharply limited the use of race in assigning students to schools in districts that were no longer, or never had been, under court supervision,” explains Education Week’s Mark Walsh. While that decision “invalidated race-conscious assignment plans” in Seattle and Jefferson County, Kentucky, Kennedy also wrote that “there could still be a compelling interest for a school district to seek a diverse student population,” Walsh notes.

John B. King, who served as education secretary during the final year of the Obama administration, didn’t mince words in his response to the announcement of the rescission.

“This administration’s continued and cruel attacks on civil rights and justice represent a horrific attempt to unravel the very fabric of our democracy. With the search underway for Justice Anthony Kennedy’s replacement on the Supreme Court, the need could not be more urgent for advocates to be vigilant and fight relentlessly for equity and justice, especially for our nation’s most underserved students and families,” said King, who now heads The Education Trust, a Washington-based research and advocacy group focused on closing opportunity gaps for underserved students.

And Todd A. Cox, the policy director at the NAACP Legal Defense and Educational Fund, wrote that the Trump administration was launching ”another attack on the principles of equal access and opportunity. Racial diversity is not only key to preparing our nation’s young people for the global economy, but it also exposes students to new ideas and perspectives, which are essential to a well-rounded education.”

Superintendents’ Group Calls Action ‘Short-sighted’

Meanwhile, the national School Superintendents Association (AASA) called the affirmative action rescission “short-sighted” in a statement Tuesday.

“It is imperative that the nation’s school system leaders have the flexibility they need in addressing the racial and economic diversity of their schools and students. Given that guidance is non-binding and does not have the power of the law, AASA errs on the side of equity, diversity and flexibility, and opposes the Trump administration’s latest proposal.”

At EWA’s National Seminar in May, experts discussed how the Trump administration’s education policies — including on admissions — are impacting colleges and universities. You can read a write-up of that session here.

An ongoing lawsuit against Harvard University by a group of Asian-American students alleges race-based discrimination. We looked at that issue at EWA’s Higher Education Seminar last fall. We also covered students of color pushing back on the white plaintiff’s arguments in the Fisher vs. University of Texas decision here.