Among the polarizing initiatives of the Trump administration are its policies on education. Whether addressing sexual assault on campuses, funding for the Special Olympics, or the prospect of training teachers in the use of deadly weapons, the Department of Education (DEd) has stunned policy-watchers in its willingness to promote or support regressive changes to the school environment that some interest groups find insensitive if not dangerous. Lately, the U.S. Department of Justice (DOJ) has added its support to a court challenge against affirmative action in school admissions programs. This move follows a series of joint DEd-DOJ actions to obliterate Obama-era policies supportive of affirmative action efforts in school admissions. In sum, the administration is working on various fronts to derail race-sensitive affirmative action efforts. What follows is a contextual summary of these efforts along with (I hope) some reasonably even-handed commentary.
The Harvard Case
Since 2014, a private advocacy group called Students For Fair Admissions (SFFA) has been engaged in a high-profile legal battle with Harvard College. In litigation before the U.S. District Court in Massachusetts, SFFA seeks a judgment that Harvard has employed racially discriminatory admissions practices to the detriment of Asian applicants, thus violating Title IV and VI of the Civil Rights Act of 1964 (CRA). Title IV empowers DEd to aid school boards in their efforts to promote desegregation in schools, and Title VI prohibits racial discrimination in programs receiving federal funds. The CRA finds its basis in the U.S. Constitution’s 14th Amendment prohibition against a state’s denial of any person’s equal protection under the law.
In the 1978 case Regents of University of California v. Bakke, the Supreme Court (SCOTUS) interpreted the equal protection clause as prohibiting state school admissions programs from relying on racial quotas to aid historically disadvantaged racial groups. InBakke and it progeny, although SCOTUS acknowledges that the 14th Amendment aims to protect the historically disenfranchised, in affirmative action cases SCOTUS reads the equal protection clause to mandate the state’s near-identical treatment of all individuals. Stripped of their historical context, quota systems and other set-asides do not treat all persons equally. Thus, the Chief Justice, along with Justices Thomas and Alito and the late Justice Scalia, for example, have all pressed for a literal, race-blind reading of the equal protection clause in the affirmative action context. Under this reading, if a school’s admissions process systematically places white applicants at a statistical disadvantage when competing against applicants who are of a race with a history of cultural abuse, even if the school does this with the stated aim of rectifying current disadvantages resulting from these historical abuses, that school violates the white applicants’ constitutional rights. In short, to a majority of SCOTUS, equal protection operates primarily as a check on present-day disparities of any sort borne by any race, and only secondarily, if at all, as a form of reparations for past injustices.
Even to the Justices who insist that the equal protection clause protects all races, affirmative action plans may seek to rectify past wrongs inflicted by one race on another. But such plans pass muster under equal protection analysis only if they work to sensitize individual admissions decisions to the disadvantaged circumstances of particular applicants considered on a case-by-case basis. Under this construct, SCOTUS has approved school admissions practices that recognize race as one feature among many through which the school assesses individual applicants. According to SCOTUS, admissions systems that count race as one among a number of factors aimed at developing a student body that is diverse in multiple ways pass muster as narrowly-tailored means toward a compelling state goal – a diverse school population – that benefits all members of that student body.
In its filings and in court, Harvard argued that its admissions system meets the criteria set forth above, as established by the 2016 SCOTUS decision Fisher v. University of Texas at Austin. Harvard admitted that race might be considered by admissions personnel as one among a number of factors through which students are selected or rejected, but insisted that race is not an express or weighty decisional factor. SFFA, on its part, contended that Harvard employs several subjective elements in its practice of evaluating individual applicants that allow it to discriminate tacitly but systematically against Asian applicants. SFFA argued that admissions records prove that such discrimination has occurred. The DOJ, in its brief, echoed the arguments offered by SFFA. The fact that the DOJ added its voice to the case is defensible as a matter of history and policy, as the case is likely to stand as a significant statement on the status of affirmative action education programs under the CRA, which the DOJ plays a key role in administering.
The Policy Rollback
Acting in concert with the DEd, the DOJ has also played a visible role in slashing Obama-era statements of policy on affirmative action in education. Through President Obama’s terms in office, the DEd and DOJ published a series of policy statements clarifying that administration’s interpretation of equal protection, along with its reading of pertinent SCOTUS decisions, the CRA, and its own policies and priorities. These statements took the form of open letters called Dear Colleague Letters, usually accompanied by supportive explanatory guidance documents. Various federal agencies use this format to encourage the regulated community to operate in conformity with administration programs and goals.
Administrative Procedure Act (APA) section 553 arguably authorizes both Dear Colleague Letters and associated guidances in that the APA expressly allows both “general statements of agency policy” and “interpretative rules” to bypass the public vetting process required for regulations destined for codification in the Code of Federal Regulations, which are presumed to carry the force and effect of law. Administrative law also includes a general premise that agencies should rescind policies through the process used to promulgate them. Thus, if one administration may forego the public vetting process of typical rulemaking and instead publish a Dear Colleague Letter and guidance to encourage recipients of federal funds to adhere to its policy preferences, the next administration may cancel or replace such policy statements with its own administration-driven announced set of priorities and goals. In short, the law of executive policymaking presumptively allows the Trump administration to withdraw or replace Obama-era guidance as readily as it allowed the Obama administration to publish them. The Obama administration, unsurprisingly, followed the same process in connection with Bush-era guidances.
Following this process of rescind and replace, on July 3, 2018, the DOJ and DEd issued a Dear Colleague Letter announcing the withdrawal or archiving of seven Dear Colleague Letters and related guidance documents published by the Obama administration between 2011 and 2016, all of which addressed race-focused education programs and practices. The archived Obama-era guidance documents included, for example, a 2011 Guidance on operating nondiscriminatory affirmative action admissions programs and a 2014 Guidance on the nondiscriminatory administration of school discipline. According to the current DOJ and DEd, these Obama-era documents urged the implementation of school admissions policies and procedures that exceed both constitutional requirements and those of the CRA, equated disparate impact with discriminatory intent by accepting statistical evidence as proof of racial bias, and displaced the states’ primacy in setting education policy. All these legal problems, the DOJ-DEd letter informs its readers, justify its archiving of the Obama-era policies.
Perhaps more significantly, however, the 2018 Dear Colleague Letter may be read to accuse the Obama-era guidance documents of having recommended certain affirmative action admissions program elements in a manner bordering on coercive, in that the Obama DOJ and DEd impliedly warned educational institutions that the Obama administration would likely consider non-conforming admissions practices to violate the CRA. In this final accusation, the 2018 Dear Colleague Letter faults the Obama-era documents as being “inconsistent with governing principles for agency guidance documents.” In this way, current administrators justify their withdrawing Obama-era affirmative action guidance on principled grounds – that is, without admitting that the move signals the beginning of a directed effort to end programs to promote or preserve racially integrated state school campuses.
The distinction between a helpful template and a mandate can be difficult to discern, and a review of the Obama-era guidances offers some support for the 2018 joint DOJ-DEd rationale for archiving them. The 2011 Guidance for Postsecondary Schools, for example, offers such particularized options for admissions programs that they seem designed to tempt schools to adopt them as written. Although the 2011 Guidance dictates nothing, it conveys the message that adopting the administration’s recommended methods for incorporating race into admissions decisions will insulate the schools against constitutional challenge.
In its defense, however, the 2011 Guidance offers much more than a template for meeting Obama-era criteria for affirmative action. First, the 2011 Guidance explains the 2003 SCOTUS decisions, Gratz v. Bollingerand Grutter v. Bollinger. The Guidance is accurate and straightforward in its explanation of the two cases, through which the Court neatly laid out the parameters for racially-sensitive school admissions programs by simultaneously condemning the undergraduate affirmative action practices of the University of Michigan and upholding the same university’s law school admissions program. Gratz and Gruttermade clear that the key to an affirmative action admission program surviving equal protection analysis is the degree to which an applicant’s race impacts admission. As one factor among many considered in an admissions decision, race properly aids a school to develop the racially diverse population that SCOTUS recognized as a compelling government interest. As a weighted element of an admissions score, the race component of an admissions decision violates equal protection. There is nothing controversial or political about the explanation of this judicial standard in the 2011 Guidance, and it cannot fairly be called coercive in this regard.
In addition, the 2018 Dear Colleague Letter, in condemning prior guidances as exceeding the “governing principles for agency guidance documents,” offers little more than a blanket rebuke on this score. Certainly the 2011 Guidance offers detailed advice on how an educational institution might safely adhere to the Grutter parameters. Here, as in past instances where agencies are accused of de facto regulation through the issuance of internal memoranda or staff manuals that agency employees treat like mandates, the level of detail could conceivably blur the line between informal guidance and regulatory directive. But the 2011 Guidance suggests multiple processes through which admissions policies may remain within the Grutterparameters. In setting forth these options, the 2011 Guidance guides without dictating. The law and norms of administrative law and practice contain no prohibition against agency-developed explanations of case law or choice-driven guidance on implementation.
Yearning for an End to Affirmative Action
Advocates from both sides of the political spectrum look forward to a day when affirmative action programs are obsolete. Unfortunately, common ground among liberal and conservative visionaries ends there. Those who sense and distrust the inherent biases of political majorities, along with those who perceive the injuries of racial oppression as long-term and deeply ingrained in its victims, view affirmative action as fueling a slow social crawl toward reparations as well as a check against a backslide into race-based segregation. In contrast, those who perceive racial disparities in current U.S. culture and politics as divorced from slavery and its aftermath are more likely to view affirmative action as a tacit acknowledgement of inherent racial differences.
In 2007, the Chief Justice expressed the anti-affirmative action perspective described above, ending his majority opinion in Parents Involved in Community Schools v. Seattle School District No. 1with a simple editorial assertion: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Seven years later, in Schuette v. Coalition to Defend Affirmative Action, SCOTUS again signaled its readiness to embrace a literal interpretation of equal protection, defending Michigan’s amendment of its state constitution that banned all “preferential treatment to [ ] any individual or group on the basis of race . . . .” It is time, the Schuette Court signaled, to trust majority voters in their as-yet unproven assurance that the days of racial bias are over, and so affirmative action is obsolete.
In one sense, both the Harvard case and the Trump administration’s archiving of Obama-era affirmative action policies support the Court’s optimism that racism in the U.S. is a sin of the past. In another sense, of course, SFFA’s accusations that Harvard admissions personnel secretly discriminate against Asian applications, much like the DEd-DOJ campaign to decouple federal policy from SCOTUS precedents allowing even minimal sensitivity to the disadvantages of race, acknowledge that race-based implicit biases remain deeply ingrained in U.S. culture.
Professor Peter Manus teaches Administrative Law, Contemporary Property Concepts, Environmental Advocacy, Environmental Justice, Environmental Law, Environmental Theory and Politics, and Property at New England Law | Boston.