It would not be surprising if Jeff Sessions wants to get rid of affirmative action in college admissions for good. This is the same attorney general who is bent on taking us back to the drug war of the 1980s, who doesn’t prioritize curbing police brutality or voter suppression, and who holds the view that existing law doesn’t protect gay workers from employment discrimination. Killing affirmative action in higher education would seem like the next logical step.
But historically, the federal government’s role in race-sensitive admissions policies has been limited. The battle over affirmative action has been waged in large measure by private individuals against state universities — typically aggrieved white students with decent grades who nonetheless failed to make the cut at the school of their choice and then took it to court. Their claim has been, and continues to be, that the Constitution doesn’t tolerate discrimination on the basis of race, and thus any consideration given to skin color during the admissions process, no matter how minor or “holistic,” means the admissions program itself is unconstitutional.
So the Department of Justice inserting itself into this debate would represent a dramatic break with prior practices, even for a department that does have a section dedicated to education equality. And yet, when the New York Times reported that the department was looking for lawyers to help it spearhead a new initiative to pursue “investigations and possible litigation related to intentional race-based discrimination in college and university admissions,” the Trump administration stopped short of calling the latest outrage “fake news.” Instead, a spokesperson clarified the initial Times report, noting that the goal wasn’t to fight discrimination against the likes of Abigail Fisher across the land, but only to get involved in one administrative case involving a different kind of plaintiff: Asian-Americans.
The DOJ didn’t mention Harvard, but the description of the pending 2015 complaint as one that “alleges racial discrimination against Asian-Americans in a university’s admission policy and practices” sounds a lot like a similar lawsuit Harvard has been defending in federal court since late 2014, filed by Students for Fair Admissions, a front group by Edward Blum.
Blum is a tireless conservative legal impresario who has a remarkable success rate at getting the Supreme Court to pay attention to his lawsuits, even though he’s not a lawyer. And all of his cases are designed to make America and its Constitution color-blind again. You may remember Shelby County v. Holder, the 2013 case that dealt a blow to the Voting Rights Act of 1965. That’s a Blum case. Or the two iterations of Fisher v. University of Texas at Austin, his failed attempt at destroying affirmative action at Texas’s flagship state university, and perhaps even nationwide. He was also behind the more obscure Evenwel v. Abbott, which could’ve done away with the constitutional principle of “one person, one vote.” (It didn’t.)
The Harvard lawsuit had been on hold while the second Fisher case was being decided, but the case has picked up steam since. Blum’s legal team has pulled out all the stops: His lawyers are on a quest to prove that Harvard’s diversity efforts actually harm admitted minority students — the so-called “mismatch” theory that even the late Justice Antonin Scalia once had the temerity to float from the Supreme Court bench, when he suggested that black students might be better served by attending “a slower-track school where they do well.”
As part of the discovery process, Blum’s team has even sought subpoenas for four top-ranking high schools, among them New York’s Stuyvesant High School, which enrolls a sizable percentage of Asian-American students, as it seeks to prove that some of those graduates may have been unduly rebuffed by the Ivy League. Over its objections, Harvard also had to turn over six years of enrollment data. Things are heating up in the case.
Where does this leave the Department of Justice? That’s anyone’s guess. The legwork so far has all been done in litigation by someone else. The team of government lawyers that the department is seeking to look into the Harvard complaint could very well intervene formally in the case and piggyback on whatever Blum’s lawyers have uncovered so far. Or they could take a more formalistic role by filing a “statement of interest” — a document whereby Sessions might let the court and the parties know the considered views of the United States. This might consist of a harder stance against affirmative action: that the limited use of race at even private institutions like Harvard needs to be reined in or abolished altogether, the Supreme Court’s recent ruling in Fisher notwithstanding.
That, of course, would be unprecedented, and not just because the DOJ doesn’t typically weigh in on constitutional litigation where no state actors are involved. But also because fighting affirmative action is a few steps removed from other prerogatives of federal civil-rights enforcement. Micromanaging Harvard’s admissions process doesn’t at all resemble the DOJ’s past fights for equality, like protesting Texas’s discriminatory voter-ID law or unconstitutional policing in Baltimore or Chicago. But for Donald Trump’s Department of Justice, these are no longer top priorities.