In 2011, the Obama administration encouraged America’s selective educational institutions to cultivate diversity in their classrooms, by “taking account of the race of individual students in a narrowly tailored manner.” The Departments of Justice and Education provided schools and universities with detailed guidance on how they could pursue affirmative action in admissions without running afoul of the judiciary.
And in the final year of Barack Obama’s presidency, the Supreme Court vindicated his administration’s position. In a 4–3 ruling penned by Anthony Kennedy, the court upheld the University of Texas’s (modest) version of affirmative action.
But now, Kennedy is retired, Donald Trump is president — and the federal government has repealed Obama’s guidance, and replaced it with a plea for all educational institutions to use “race-neutral methods for assigning students to elementary and secondary schools.”
As it is wont to do, Jeff Sessions’s Justice Department insists that its rejection of the Obama-era guidance has nothing to do with an ideological opposition to the substance of the policy. Rather, just like the former president’s Deferred Action for Early Child Arrivals (DACA) program, his affirmative action guidance was simply unlawful. “The Executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law,” Devin M. O’Malley, a Justice Department spokesman, told the New York Times Tuesday.
But, of course, the Trump administration has shown no shyness about taking an expansive interpretation of executive authority when it suits its aims. And attorney general Sessions has made his distaste for affirmative action manifest, vowing to bring lawsuits against any universities that adopt admissions policies that unduly advantage African-American applicants.
The administration’s new policy returns federal guidance to where it was under George W. Bush. That guidance does not have the force of law — but it’s still something more coercive than a mere suggestion. As the Times notes, “School officials who keep their admissions policies intact would do so knowing that they could face a Justice Department investigation or lawsuit, or lose federal funding from the Education Department.”
At the end of this month, briefs will be filed in a high-profile lawsuit against Harvard University, which argues that the school’s consideration of race in admissions has resulted in unconstitutional discrimination against Asian-American applicants. The case appears destined for the Supreme Court; and the court’s pending, far-right majority seems quite likely to side with the plaintiffs.
A study released by Northwestern University, Harvard, and the Institute for Social Research in Norway last year found that hiring discrimination against African-Americans remains pervasive in the U.S. — and that such discrimination is roughly as prevalent now as it was in 1989, meaning that no significant progress has been made on that front for nearly three decades.
Meanwhile the median white family lays claim to 12 times more wealth than the median black family — a racial wealth chasm that is largely the product of federal housing policies that barred most African-American families from purchasing homes in desirable neighborhoods with well-funded schools.
