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With New Supreme Court Challenge in Sight, Trump Rescinds Guidance on Affirmative Action in College Admissions

By Mark Keierleber | July 8, 2018

Just a day before last week’s July 4th holiday, the Trump administration rescinded Obama-era guidance on affirmative action policies in college admissions, a move that could have major implications for thousands of minority students looking to go to college.

The Trump administration announced it was rescinding 24 guidance documents that were “unnecessary, outdated, inconsistent with existing law, or otherwise improper,” including seven letters from the Departments of Education and Justice that said school districts and universities may consider race in admissions.

Across the country, minority student representation on college campuses is low. At public flagship universities, for example, enrollment sits at 5.2 percent for black students and 8.9 percent for Hispanic students, according to The Education Trust.

Catherine Lhamon, chair of the U.S. Commission on Civil Rights, who was assistant secretary for civil rights at the Education Department under President Barack Obama, blasted the Trump administration’s move, calling it a “strong signaling of a lack of support for diversity and inclusion in schools.” Although it remains unseen how the move will affect college decision-making, she told The 74 it’s reasonable to conclude that campuses could become whiter and less diverse, “and that is damaging for the students in those campuses and damaging for the nation that relies on an educated populace.”

The latest Education Department reversal, she said, runs counter to recent Supreme Court precedent, which remains the law. Most recently, the nation’s highest court upheld in 2016 admissions practices at the University of Texas at Austin designed to bolster racial diversity. In that case, plaintiff Abigail Fisher, who is white, argued that she wasn’t admitted to the university because of her race.

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But the legacy of that ruling may prove limited. The Trump administration’s guidance revocation comes just one week after Supreme Court Justice Anthony Kennedy announced his retirement. That news could spell doom for the future of affirmative action admissions policies since Kennedy, in a surprising reversal, sided with liberal justices in the Texas case to narrowly uphold the practice.

President Donald Trump has yet to announce a nominee to replace Kennedy, but the issue could again find itself before the Supreme Court. Justices could soon be asked to consider a lawsuit pending against Harvard University, for example, which alleges the institution caps the number of Asian Americans admitted. An internal Justice Department announcement that became public last year outlined plans to investigate and sue universities that employ race as a factor in admissions decisions. Late last year, the Department of Justice opened an investigation into Harvard’s practices.

Several institutions, including Harvard, defended their practices after the Trump administration’s latest decision. “Harvard will continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years,” the university said in a statement.

Though less contentious, the Trump administration also scrapped Obama-era guidance that took aim at racial segregation in K-12 schools. That guidance said districts may use “generalized race-based approaches” to admit students, such as looking at the racial composition of neighborhoods, but do not consider a single student’s race. School districts, the guidance noted, are “required to use race-neutral approaches only if they are workable.” In some cases, the guidance said, a race-neutral approach “will be ineffective to achieve the diversity that the school district seeks or to address racial isolation in the district’s schools.”

That guidance gave options to districts that prioritized campus diversity, Noelle Ellerson Ng, associate executive director of policy and advocacy for AASA, the School Superintendents Association, told Politico. But the Trump administration, she said, could take those options off the table.

“If schools decide to use race as a factor when they look at how they zone elementary or middle schools, for example, that could come under suspicion in the new Trump schema,” she said.

The Trump administration’s most recent broadside is consistent with other recent decisions to undercut Obama-era actions designed to bolster racial equity in education. At the end of June, the Trump administration delayed by two years an Obama-era rule that would require states to more closely monitor whether schools have racial disparities in identifying children for special education. The Trump administration is also considering rescinding Obama-era guidance that says districts could violate federal civil rights laws when they suspend or expel students at disproportionate rates.

As the Trump administration hands a victory to critics of affirmative-action-based admissions policies, debate among researchers and university officials continues over strategies to bolster campus diversity.

In a recent report, Urban Institute researchers noted that selective colleges that rely on affirmative action still do a poor job at bolstering campus diversity. While researchers noted that affirmative action is likely the most efficient strategy to increase minority representation in higher education, other admissions factors could serve as proxies for race. Those could include admissions policies that home in on an applicant’s family wealth as well as the demographic characteristics of neighborhoods or K-12 schools.

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In states that ban affirmative action in college admissions, most colleges have found alternative strategies to boost minority enrollment, according to a 2012 report from the Century Foundation. Approaches include giving preference to low-income students of all races, increasing financial aid, improving community college transfer policies, and eliminating “legacy” policies that give preference to the children of alumni.

But maintaining affirmative action as an option, Lhamon said, is important when alternative approaches aren’t enough.

“Reality is that this nation continues to be quite separated in the residential makeup of communities and in the school communities,” Lhamon said. “It means we don’t yet live in a post-racial society in which race is not a consideration that needs to be taken into account as we consider the communities that we educate, the communities that we serve, and the communities that we live in.”

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