The Trump administration is rescinding Obama-era guidance that encouraged schools to take a student’s race into account to promote diversity in admissions.
The shift gives schools and universities the federal government’s blessing to take a race-neutral approach in admissions and enrollment decisions.
The affirmative action policies were among 24 documents rescinded by the Justice Department on Tuesday for being “unnecessary, outdated, inconsistent with existing law, or otherwise improper.” Attorney General Jeff Sessions called the changes an effort to restore the “rule of law” and blamed past administrations for imposing new rules without any public notice or comment.
“That’s wrong, and it’s not good government,” Sessions said in a statement.
The action comes amid a high-profile court fight over admission at Harvard University as well as Supreme Court turnover expected to produce a more critical eye toward schools’ affirmative action policies.
The court’s most recent significant ruling on the subject bolstered colleges’ use of race among many factors in the admission process. But the opinion’s author, Anthony Kennedy, announced his retirement last week, giving President Donald Trump a chance to replace him with a justice who may be more reliably skeptical of admissions programs that take race and ethnicity into account.
The new policy would dramatically depart from the stance taken by the Obama administration, which in a 2011 policy document said courts had recognized schools’ “compelling interest” in diverse populations. The guidance said that while race should not be the primary factor in an admission decision, schools could lawfully consider it in the interest of achieving diversity.
“Institutions are not required to implement race-neutral approaches if, in their judgment, the approaches would be unworkable,” the guidance said. “In some cases, race-neutral approaches will be unworkable because they will be ineffective to achieve the diversity the institution seeks.”
That guidance has now been rescinded, as have more than a half-dozen other similar documents, including some that sought to explain Supreme Court rulings affirming the use of race as one of several factors in the admissions process.
The Obama approach replaced Bush-era policy from a decade earlier that discouraged affirmative action and instead encouraged the use of race-neutral alternatives, like percentage plans and economic diversity programs.
The Trump administration’s announcement Tuesday is more in line with Bush administration policy, and though the guidance does not have the force of law, schools could use it to help defend themselves against lawsuits over their admission policies.
The Justice Department in the Trump administration had already signaled its concern about the use of race in admissions decisions.
The department, for instance, has sided with Asian-American plaintiffs suing Harvard University who argue that the school unlawfully limits how many of Asian students are admitted.
Students for Fair Admissions, the group suing Harvard, is led by Ed Blum, a legal strategist who also helped white student Abigail Fisher sue the University of Texas for alleged discrimination in a case that went to the Supreme Court.
Blum said Tuesday the organization “welcomes any governmental actions that will eliminate racial classifications and preferences in college admissions.” Harvard, meanwhile, said it would continue considering race as an admissions factor to create a “diverse campus community where students from all walks of life have the opportunity to learn with and from each other.”
Civil-liberties groups decried the move, saying it went against decades of court rulings that permit colleges and universities to take race into account.
“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,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said in a statement.
The Association of Public and Land-grant Universities said it was “very disappointed. Lily Eskelsen García, president of the National Education Association, said “affirmative action has proven to be one of the most effective ways to create diverse and inclusive classrooms.”
The Supreme Court has been generally accepting of considering race in admissions decisions to achieve diversity. In 2016, the court, in an opinion written by Kennedy, handed affirmative action policies a victory by permitting race to be among the factors considered in the college admission process.
The ruling bitterly disappointed conservatives who thought Kennedy would be part of a Supreme Court majority to outlaw affirmative action in education. Justice Antonin Scalia died after the court heard arguments in the case but before the decision was handed down.
The new affirmative action guidance could add to an already contentious fight over the next justice. With President Trump expected to announce his nominee next week, the issue should be a central part of any confirmation process, said Howard University law school dean Danielle Holley-Walker.
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.
“People have been talking about precedent in regard to [sanctity of life], but it’s important to remember that affirmative action has been a precedent for the past 40 years,” she said. “This is a clear attack on precedent. Any Supreme Court nominee needs to be asked if they support precedent related to affirmative action.”