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Trump administration changes course on affirmative action

Harvard is facing a lawsuit that claims the university’s race-based admissions policies hurt Asian-American applicants.
Harvard is facing a lawsuit that claims the university’s race-based admissions policies hurt Asian-American applicants.Josh Reynolds for the Boston Globe

The Trump administration on Tuesday withdrew Obama-era guidelines on affirmative action, a move seen as a signal that the federal government may soon challenge Harvard University’s admissions practices and prod other schools to drop race-conscious policies.

Arguing that Obama went too far in advocating for the use of race in education, the US departments of Education and Justice withdrew at least seven documents that offered colleges and universities, along with elementary and secondary schools, guidance on how to avoid racial segregation and diversify their campuses.

“The Supreme Court has determined what affirmative action policies are constitutional, and the Court’s written decisions are the best guide for navigating this complex issue,” Education Secretary Betsy DeVos said in a statement. “Schools should continue to offer equal opportunities for all students while abiding by the law.”


The rollback of guidelines comes as Harvard University is being sued over its admissions practices by a group claiming it discriminates against Asian-American applicants. The case is being closely watched and could have far-reaching implications for colleges and their efforts to bring together students of different races and backgrounds. Trump could soon stake out a formal position opposing Harvard’s practices, specialists in college admissions predicted Tuesday.

On Tuesday, Harvard and other universities were defiant in defending their admissions policies as legal.

“Harvard will 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,” said Melodie Jackson, a spokeswoman for the university.

A diverse class made up of students of different races, religions, political affiliations, and geographical backgrounds benefits everybody, said Michael Armini, a spokesman for Northeastern University who leads its government relations office.

The administration’s decision to rescind Obama-era guidelines will not change Northeastern’s practice of using race as a consideration in admissions, Armini said.


“This is not a change in the law, this is not congressional action or a ruling from the Supreme Court,” he said. “The world that today’s students are going to be thriving in is diverse, interconnected, and global. Their college education has to prepare them for today and tomorrow, not the world of yesterday.”

The Trump administration’s move does not change the law on affirmative action. The US Supreme Court has upheld the use of race as a factor in admissions policies, as long as colleges can show that other methods alone cannot achieve diversity. 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 because of their race, experts said.

The Supreme Court is also likely to change soon. Justice Anthony Kennedy who was the swing vote in a 2016 decision to uphold race-conscious admissions policies, is retiring at the end of the month. That will offer the Trump administration an opportunity to pick a judge who favors race-blind admissions policies, experts said.

A change in the court’s approach could take years to play out. However, Roger Clegg, president of the Center for Equal Opportunity, which opposes affirmative action, said universities should carefully consider whether their practices are likely to be upheld.

“We’re now looking at a post-Kennedy Supreme Court. It would be wise to consider if their use of race is likely to be something that the courts of the future will be likely to uphold,” Clegg said.


The Trump administration is also likely preparing to oppose Harvard’s admissions policies in a lawsuit that was filed by the Students for Fair Admissions claiming that the Ivy League university’s race-based policies hurt Asian-American applicants, Clegg said.

Having Obama guidelines on the books that support the use of race to diversify campuses when the Trump administration feels differently would be awkward, he said.

“They’ve obviously been looking at the case for almost a year now,” Clegg said. “It is more evidence that the Trump administration is skeptical about race-based decision-making in admissions and in other contexts.”

Outside parties will be filing briefs in the Harvard case in the coming weeks. That lawsuit in US District Court in Boston hinges on whether Harvard limits the number of Asian-American students it admits every year.

Students for Fair Admissions alleges that Harvard’s rating system is stacked against Asian-Americans who tend to score lower on evaluations of personal traits, such as likability, even though their tests scores may be higher than those of other applicants and they participate in many extracurricular activities.

Harvard denies any discrimination and has argued that its admissions rate for Asian-Americans has grown by 29 percent in the past decade.

The case is likely to go to trial this fall and may ultimately be decided years from now by the US Supreme Court.

Still, the rescinding of the Obama guidelines could have a chilling effect on some universities as they consider the makeup of incoming freshman classes, advocates of affirmative action said.


“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, a trade group that represents presidents of many of the country’s colleges and universities. “The federal government should not threaten colleges and universities in their efforts to construct inclusive campuses.”

The Obama guidelines were a departure from previous recommendations from the administration of Republican President George W. Bush, who encouraged race neutral admissions policies.

Ultimately, it should not come as a surprise that the Trump administration would rescind these guidelines, said Tomiko Brown-Nagin, the dean of the Radcliffe Institute for Advanced Study at Harvard and a constitutional law expert.

The Obama and Trump administrations fundamentally disagree on how to interpret Supreme Court precedents and the value of diversity and whether it should be encouraged through race-conscious policies or if it is a sign of intentional racial discrimination, she said.

“The administrations’ contrary positions on the underlying law and guidance spring from quite different worldviews about the value of diversity and the propriety of the tools used to achieve diversity,” Brown-Nagin said.

Deirdre Fernandes can be reached at deirdre.fernandes
. Follow her on Twitter @fernandesglobe.