On Tuesday, as part of its perpetual quest to make life marginally easier for what we all know is America's most persecuted constituency—white people seeking admission to prestigious higher education institutions—the Trump administration rescinded Obama-era guidelines that encouraged school administrators to consider race as one of many factors in the composition of a diverse student body. Although the maneuver does not bar affirmative action outright, it does bring the eventual end of the practice's life a little more sharply into focus. It is always worthwhile at this juncture to define our terms, since "affirmative action" is perhaps this country's most-maligned and least-understood policy issue, one that elicits powerful emotional responses from opponents that are invariably intertwined with their own experiences with things like self-worth, fairness, and rejection. Quotas—the practice of setting aside a predetermined number of desks for students of a certain race—have been unlawful in public universities since 1978, when the Supreme Court declared them so in Bakke. As it exists today, "affirmative action" means that administrators may consider race in admissions, if they are so inclined, but only as a part of a "holistic review" process that evaluates each applicant on an individual basis. If it had its way, the White House would do away with this least-intrusive method of encouraging campus diversity, too. Donald Trump may have won over his most virulent supporters with with red baseball hats and jingoistic bromides, but affirmative action—along with things like abortion, tax cuts, and the composition of the federal judiciary—is one of those policy issues he can use to coax respectable, country-club Republicans who fetishize Ronald Reagan into his corner, too. Conservatives have been waging an organized culture war against affirmative action for the better part of four decades, combing the nation for potential plaintiffs who might present the elusive set of facts that will convince the Supreme Court to overturn Bakke and its progeny. Well-funded think thanks finance their legal costs, too, ensuring that money is no obstacle to a particular strain of aggrieved honors student who didn't get into their college of choice. Watch: Can Donald Trump Confront America’s Gun Crisis? Trump doesn't care about ending affirmative action, just as he doesn't care about outlawing abortion. To him, the presidency is a fun perk of being a famous person, not a platform he can use to stump on behalf of the more complex tenets of modern conservatism. But for many Republicans who will profess their personal distaste for Donald Trump at every opportunity, as long as he empowers people like Jeff Sessions and Betsy DeVos and Neil Gorsuch—people who will push those aspects of the GOP agenda in which he has no interest—his White House tenure goes from "unfathomable embarrassment" to "acceptable tradeoff." The most obvious implication of the looming Supreme Court vacancy is that Roe's days are numbered, but this is not the only issue that Justice Kennedy's abdication has placed in the balance. The right-wing's most recent salvo against affirmative action—Fisher v. University of Texas, a lawsuit brought on behalf of an unqualified and unsuccessful white applicant to the University of Texas—met its defeat in the Supreme Court in 2016 by only a 4-3 margin. (Justice Scalia had died several months earlier, and Justice Kagan, who was involved in the case in her prior role as solicitor general, recused herself from the decisionmaking process.) The man who authored the majority opinion, over strident dissents from the Thomas-Roberts-Alito triumvirate? The soon-to-be-senior-status Justice Anthony Kennedy. Judges often speak reverently of the importance of precedent, and of upholding settled law even if do not agree with its underlying rationale. But the unending conveyor belt of affirmative action plaintiffs means that the justices will never want for an opportunity to revisit their most recent take on the subject. As the Times notes, a lawsuit brought against Harvard University on behalf of Asian-American applicants—funded by the same people who championed the almost-successful Fisher plaintiff—is already marching its way through the court system, and today's announcement signals that Sessions' Department of Justice will pursue further legal action against uncooperative institutions more vigorously than ever. The pincers are closing on what remains of affirmative action, and in a few years, with Justice Gorsuch and Justice Federalist Society Favorite TBA on the bench, the conservative movement may finally get its wish.<doc-sep>Civil rights groups see President Donald Trump’s decision as part of a larger effort to scrap affirmative action, which has been upheld repeatedly by the Supreme Court, though that could change with the appointment of a new justice. | Evan Vucci/AP Photo Affirmative action guidelines dropped by Trump administration The Trump administration on Tuesday scrapped Obama-era guidance on race-based admissions policies — just as conservatives see a fresh opening to end affirmative action through a changing Supreme Court. The move comes as a closely watched court battle over Harvard's admissions policies — which has emerged as the next front in the fight over race-based admissions — heats up. Civil rights groups see the Trump administration's decision as part of a larger effort to scrap affirmative action, which has been upheld repeatedly by the Supreme Court, though that could change with the appointment of a new justice soon to be picked by President Donald Trump. The Justice Department announced it was eliminating 24 federal guidance documents that it deemed "unnecessary, outdated, inconsistent with existing law, or otherwise improper." Seven of those were documents issued jointly with the Education Department's Office for Civil Rights under the Obama administration that called on school superintendents and colleges to consider race when trying to diversify their campuses. Universities, however, were already vowing to stick with their admissions policies, despite the Trump administration reversal. “Four decades of case law make clear that race and ethnicity can be one of many factors that universities can consider during the admissions process," said Peter McPherson, president of the Association of Public and Land-grant Universities, in a statement. "Public universities will continue to operate in accordance with the Constitution, state law, and past court rulings to ensure they appropriately foster a diverse campus to the benefit of all." Harvard pledged to "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 largest higher education lobbying group also pushed back. "The Trump administration is sending precisely the wrong message to institutions that are committed to following four decades of Supreme Court precedent," said Ted Mitchell, president of the American Council on Education. "Colleges and universities that consider race and ethnicity as one factor in a holistic admissions review are committed to following the law of the land. And make no mistake, this is the law of the land. Today’s announcement does not change that," said Mitchell, a former member of the Obama administration Education Department. Morning Education A daily dose of education policy news — weekday mornings, in your inbox. Email Sign Up By signing up you agree to receive email newsletters or updates from POLITICO and you agree to our privacy policy and terms of service. You can unsubscribe at any time and you can contact us here. This sign-up form is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. At the same time some documents were removed, the administration restored on the Education Department's website George W. Bush-era guidance that “strongly encourages the use of race-neutral methods” in admissions. The affirmative action move is one of the first by the Education Department's new civil rights chief, Kenneth Marcus, who was confirmed by the Senate last month. Marcus previously led a Jewish advocacy group that contended in a Supreme Court filing that "race conscious admission standards are unfair to individuals, and unhealthy for society at large." He wrote in a Dear College letter about the decision Tuesday that the Obama guidelines "advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI." Education Department officials did not respond to requests for comment. The administration's plans on the guidance were first reported by The Wall Street Journal. The Supreme Court has ruled multiple times that colleges and universities can use race in admissions, as long as its use is "narrowly tailored." But the high court's support for the policies could erode with the departure of Justice Anthony Kennedy, who was a key swing vote on the issue and wrote multiple rulings supporting race-based college admissions policies. Most recently, Kennedy authored a 2016 opinion in favor of the University of Texas at Austin over Abigail Fisher, a white woman who sued the school in 2008 after she was denied admission. Kennedy wrote that "considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission." His departure could open the door for a new swipe at affirmative action, and many see the Harvard case as the next best shot. The university is defending its admissions policies against a lawsuit accusing the school of discriminating against Asian-American applicants — a legal challenge supported by Ed Blum, a prominent anti-affirmative action activist who also pushed the challenge to UT Austin. The Trump administration's Justice Department has waded into that Harvard court battle and has launched its own investigation into the school's admissions policies. "The federal government has set its sights on challenging Harvard’s admissions policies, making clear that the decision to rescind this guidance is part of a concerted effort to dismantle diversity efforts in higher education," said Todd Cox, policy director at the NAACP Legal Defense and Educational Fund, which helped defend UT Austin's admissions policies. "I would presume the Harvard case ... is the reason the Justice Department is making the move it's making today," said Anurima Bhargava, who led the Justice Department's Civil Rights Division under the Obama administration and helped draft the guidance the Trump administration is scrapping. "They probably want to weigh in there to say something different than was said in the University of Texas case." Obama's Justice Department sided with UT Austin in the Fisher case, writing in a brief filed in that case that the university's "policy continues to make a meaningful contribution to the University’s goal of ensuring the educational benefits of diversity." Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute who opposes affirmative action, said he could see the Harvard case "getting to the Supreme Court in a year and a half or two years." "In a post-Kennedy court, this is definitely one area where the law could change," Shapiro said. He said the move to scrap the Obama-era guidance is "a shot across the bow." "For one thing, it will mean administrators will no longer be able to hold up the guidance as a justification for whatever they're doing if they’re ever brought into court," Shapiro said. "It signals that the party’s over — you really need to evaluate your programs and make sure you can demonstrate you used outreach and socio-economic preferences and looked at these other things. ... Make sure you aren’t just using race in a lazy way to achieve diversity." The Education Department documents done away with Tuesday, however, extend beyond affirmative action. They include 2011 guidelines issued by the Obama administration for public schools that detailed a number of ways that school districts can consider diversity without making decisions based on the race of individual students. The Obama guidance stressed that school districts must “use race-neutral approaches only if they are workable.” But when they’re not, “school districts may employ generalized race-based approaches.” Noelle Ellerson Ng, associate executive director of policy and advocacy for AASA, The School Superintendents Association, said the Obama guidance never made a splash with the school superintendents nationwide that her organization represents. It simply outlined suggestions for local communities that determined diversity was a priority, she said. Now, there’s concern that school districts can’t consider these avenues without facing consequences, should the Trump administration adhere strictly to the guidance, Ellerson Ng said. “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. Josh Gerstein, Kimberly Hefling and Caitlin Emma contributed to this report.<doc-sep>
As the Trump administration dumps Obama-era affirmative action guidlines encouraging schools to increase campus diversity by using race as a factor in admissions policies, many wonder what impact it will have on nonwhite students trying to get into their college of choice. While ditching the guidance does not change the law, and schools and colleges that want to improve diversity can still use affirmative action despite a lack of federal support, the Supreme Court precedent underpinning such policies could be under threat. Justice Anthony Kennedy, who has supported affirmative action in college admissions as constitutional, is retires on July 31. President Donald Trump's pick to replace Kennedy could tilt the fine balance of votes on this issue. Attorney General Jeff Sessions announced that the guidlines would be scrapped, signaling the administration's direction on affirmative action, of which it has been highly critical. Sessions said the Obama-era guidelines go beyond what the Supreme Court permits. In place of race-aware guidance for education providers will be the instruction to adopt race-neutral admission policies, The Wall Street Journal reported. The Supreme Court first ruled that race-conscious admissions policies were compatible with the Constitution in the 1978 case Regents of the University of California v. Bakke. Race was ruled permissible as one of a number of considerations in school admissions. This decision was affirmed in the 2003 Supreme Court case Grutter v. Bollinger, on which Kennedy dissented, when it was ruled that race-aware admissions in the pursuit of campus diversity were not a breach of the Constitution. The ruling sanctions the "narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." Twice again, in 2013 and 2016, race-aware admissions policies were affirmed by the Supreme Court as within the bounds of the Constitution. However, it has also been consistently affirmed that race-based quota systems for admissions are unconstitutional. The Obama administration developed guidelines for schools and colleges wanting to use race in admissions and remain within the scope of the law. They were jointly issued by the education and justice departments. "Ensuring that our nation's students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty ideal," the guidelines say. "As the Supreme Court has recognized, the benefits of participating in diverse learning environments flow to an individual, his or her classmates, and the community as a whole. These benefits greatly contribute to the educational, economic, and civic life of this nation." Now President Trump has scrapped those guidelines in what is likely a broader move against affirmative action in general, despite research that suggests the most effective way of increasing campus diversity and levelling the playing field for nonwhite students is affirmative action. A 2015 paper from the education nonprofit Educational Testing Service modeled what the impact would be of substituting socioeconomic status for race in affirmative action admissions policies. "Our analysis here suggests that affirmative action policies based on socioeconomic status are unlikely to achieve meaningful increases in racial diversity," the researchers concluded. "That is not to say that socioeconomic affirmative action would not be valuable in its own right—it would increase socioeconomic diversity on university campuses and would benefit low-income college applicants—but only that it is not an effective or efficient means to achieving racial diversity. "Race-conscious affirmative action does, however, increase racial diversity effectively at the schools that use it. Although imperfect, it may be the best strategy we currently have." Lily Eskelsen García, president of the National Education Association, a professional group, said in a statement that "affirmative action has proven to be one of the most effective ways to create diverse and inclusive classrooms." "But by telling schools and universities that they should not use affirmative action to achieve inclusive classrooms, the Education Department has again failed our students," she said. "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 Education Department's action forecasts how much is at stake in the upcoming Supreme Court nomination process. Our nation must join together and fight to ensure all our students have what they need to succeed." One case that may give the Supreme Court—which will likely include Trump's next nominee—an opportunity to overturn the precedent involves a group of Asian-American students suing Harvard University for its admissions policy.