04 July, 2018
"By encouraging schools to not consider race during the admissions process or potentially in any other circumstance, President Trump is undermining the benefits of diversity in schools and accelerating the socio-economic divide", NAACP President and CEO Derrick Johnson said in a statement.
Anurima Bhargava, who headed civil rights enforcement in schools for the Justice Department under President Barack Obama and co-authored the Obama-era guidance, said that the policy withdrawal was timed for brief filings in the Harvard litigation, due at the end of the month. The case revolves around affirmative action and whether or not states have the right to ban schools from using race as a consideration in school admissions. "The rescission of this guidance does not overrule forty years of precedent that affirms the constitutionality of a university's limited use of race in college admissions". Analysts say the choice of justice could influence the future of affirmative action, among many other issues.
The guidance documents were among 24 the Justice Department rescinded, claiming they were "unnecessary, outdated, inconsistent with existing law or otherwise improper". However, the action does suggest that the federal government will be more willing to investigate complaints by applicants that they were denied entrance to a particular college due to their race, experts said.
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The guidance reversed Tuesday provided examples of different educational contexts within which institutions could permissibly consider race and answered questions about how to interpret Supreme Court decisions.
The Department of Justice is now investigating Harvard's use of race in admissions; specifically, whether the school is holding Asian-American students to a higher standard. "It is more evidence that the Trump administration is skeptical about race-based decision-making in admissions and in other contexts". It is expected to go to trial in October. "President Trump has indicated he intends to appoint a nominee to the Supreme Court who will declare that affirmative action is unconstitutional in our schools".
The Supreme Court has been generally accepting of considering race in admissions decisions. She said the announcement underscored the stakes surrounding the upcoming Supreme Court appointment. In 2016, the court, in an opinion written by Kennedy, granted affirmative action policies a narrow victory by permitting race to be among the factors considered in the college admission process. With his retirement, a conservative justice appointed by President Donald Trump could vote to ban affirmative action.
She called the new guidance "highly unfortunate and counterproductive" and said the decision is another indication that the Justice Department under Sessions is likely to be aggressive toward schools that do continue to factor in race in admissions decisions. But they are very loose in their reading of Supreme Court rulings over the last decade.