The Trump administration intends to do away with Obama-era rules on how race can be used in college admissions.
The Department of Education’s decision to rescind a set of guidance documents won’t have an impact on affirmative action—but, as CNN notes, the impending departure of Supreme Court Justice Anthony M. Kennedy leaves the door open for later attempts at revision.
“The executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law and—in some instances—stays on the books for decades,” said Justice Department spokesperson Devil O’Malley. “Last year, the Attorney General initiated a review of guidance documents which resulted in dozens of examples—including today’s second tranche of rescissions—of documents that go beyond or are inconsistent with the Constitution and federal law. The Justice Department remains committed to enforcing the law and protecting all Americans from all forms of illegal race-based discrimination.”
O’Malley’s insistence that guidance documents are inherently compatible with federal law seems a sweeping assertion.
By and large, guidance has been used by the government’s bureaucracies to uphold and enact certain interpretations of law and federal regulation. Courts have a mixed history when it comes to precedent and enforcement.
While O’Malley may be referring only to guidance documents which ‘transcend’ legislative and judicial precedent, his statement serves, at best, as a barebones explanation.
Nevertheless, the Justice Department is on a mission to rescind whichever regulations it finds burdensome to business or the public. Last year, U.S. Attorney General Jeff Sessions said he’d end the agency’s practice of issuing guidance when it has “the effect of adopting new regulatory requirements or amending the law” without first passing through a formal rulemaking process.
The Hill notes the Department of Education’s decision follows the Justice Department’s support for a lawsuit against Harvard University. Plaintiffs in the case allege that the school holds Asian-American applicants to a higher admissions standard than individuals of other races. According to the complaint, Asian-Americans—who constitute about a fifth of Harvard’s student body—would see their representation doubled if the college were unable to use a ‘personality’ interview which disproportionately favors candidates from other ethnic backgrounds.
Harvard’s dilemma is typical of what some people posit as reverse-discrimination—the rejection of well-qualified candidates in the name of diversity.
No matter the administration’s intent, civil rights advocates have criticized the rescission as an attack on affirmative action—a mechanism that may not always be popular but enables socioeconomic mobility for persons of less privileged backgrounds.
“We condemn the Department of Education’s politically motivated attack on affirmative action and deliberate attempt to discourage colleges and universities from pursuing racial diversity at our nation’s colleges and universities,” said Kristin Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “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. The most recent decision by the Department of Education is wholly consistent with the administration’s unwavering hostility towards diversity in our schools.”