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I heard several times last week a narrative that the Trump administration had abolished affirmative action in college admission. It would be easy to draw that conclusion from a perfunctory examination of news reports about last week’s announcement, but it would also be wrong.
That’s not to say that affirmative action as we know it isn’t an endangered species. There is no question that race-based affirmative action is on the list of policies and conventions the Trump administration is determined to roll back, a list that seems to include things ranging from abortion rights to relationships with allies to respect for civility and truth.
The biggest threat to affirmative action isn’t from last week but rather tonight’s scheduled announcement of the nominee to fill the Supreme Court vacancy resulting from Justice Anthony Kennedy’s retirement. Kennedy has been the swing vote in recent court cases on affirmative action, and the appointment and confirmation of an activist without respect for legal precedent (what might be called a CINO -- conservative in name only) could tip both the balance of the court and the scales of justice.
Last week’s joint announcement by the Departments of Education and Justice was largely symbolic, withdrawing seven Obama Administration documents issued between 2011 and 2016 designed to provide guidance for institutions wishing to use race to achieve diversity on a voluntary basis in accordance with Supreme Court decisions. They are among 24 guidance documents dealing with a variety of topics that the DOJ has withdrawn in 2018, and the press release argued that guidance documents have been used by previous administrations to “impose rules on the American people without any public notice or comment period.”
The key word here is “voluntary.” The documents in question were not regulatory mandates, but rather guidance for those wishing to follow the law. So what’s the problem? The Dear Colleague letter sent by Kenneth L. Marcus, assistant secretary for civil rights at the Department of Education, and John M. Gore, acting assistant attorney general, argues that the documents “advocate policy preferences and positions beyond the requirements of the Constitution.” So is the issue that the Trump administration doesn’t believe that citizens should be offered guidance and clarification on how to follow the law, or just not when it doesn’t like the law (Supreme Court decision) in question? Or is the real point to stick it to the Obama administration?
Arguably the most important of the seven documents withdrawn last week is a 2011 joint Department of Education and DOJ guidance document entitled “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education.” That document supplanted a 2008 Bush administration guidance document that has just been reposted online by the government, leading some observers to speculate that the Trump administration will ultimately adopt a similar position.
The Bush guidance document argued that the law (as decided in the Grutter case involving the University of Michigan law school) required schools and colleges to use race as only one factor among many, that the use of race could not be at the expense of individualized consideration of each applicant, and that institutions had to show good-faith consideration of race-neutral alternatives.
The contrast in both tone and interpretation between the Bush and Obama guidance offers a glimpse into several larger philosophical issues that will define the debate over affirmative action, especially if the current federal court case involving Harvard University and Asian-American applicants ends up as the next test of affirmative action before the Supreme Court.
The Obama guidance takes a much stronger line on the importance of diversity, both in education and for the nation in general, stating that “Ensuring that our nation’s students are provided with learning environments comprised of students of diverse backgrounds is not just a lofty idea” and recognizing “the compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body.”
Most of us take the value of diversity as a given, and certainly no one can argue convincingly that colleges and universities or the nation would be better places for having less diversity. But is diversity an intrinsic goal, an end in itself or an instrumental goal, valuable because it enhances the educational experience? Many see those as the same thing, but are they? The Obama document talks about benefits that flow from achieving a diverse student body rather than just achieving a diverse student body.
If we achieve a student body that is diverse but doesn’t interact with students from other backgrounds and perspectives, what is the educational value? That issue came up in the oral arguments in the Fisher case, when Justice Kennedy asked representatives from the University of Texas at Austin what evidence they had to prove that the affirmative action program enhanced the classroom experience. They were unable to provide any, and maybe the educational benefits of diversity are subtle and hard to show, but we should expect to be asked to show why and how diversity enhances a student’s education in a way we haven’t before.
The Obama administration also gave institutions far more leeway. Whereas the Bush guidance emphasized race-neutral alternatives as a priority, the Obama document told colleges they were not required to implement race-neutral approaches they thought they would be unworkable, with the definition of unworkable including not bringing about the result the institution seeks. It also said that colleges need not sacrifice educational mission or priorities such as selectivity to achieve race-neutral admission.
I’m always underwhelmed by the race-neutral alternatives to affirmative action I see proposed, but the guidance from the Obama administration nevertheless bothers me. Given that guidance, how many institutions defined “unworkable” as a synonym for “inconvenient”? There is also a hint in the document that it is OK for colleges to reverse engineer the admissions process, to begin with the goal and then engineer a process that produces the desired result. That is certainly pragmatic and even strategic, but ethics is about ideals, and reverse engineering doesn’t pass the smell test. I get that a college’s educational mission should be sacrosanct, but selectivity?
The 2011 document encourages colleges to “evaluate each student as an individual and do not make the student’s race his or her defining characteristic.” The idea of race being permissible as one of many characteristics in a holistic admissions process has its origins in Justice Lewis Powell’s majority opinion in the 1979 Bakke case. That idea was inspired by the brief filed by Harvard in support of affirmative action.
The irony, of course, is that holistic admission as practiced by Harvard is now on trial in the case involving its treatment of Asian-American applicants. If an applicant’s race is but one of many characteristics considered, how much weight does race carry compared with other traits? Is the goal of diversity at odds with the goal of individual consideration? One of the documents released publicly several weeks ago in conjunction with the case was an internal Harvard report showing the subjective personal ratings side of the Harvard admissions process disadvantaged some ethnic groups and advantaged other ethnic groups in significant ways.
Last week’s move to rescind the Obama administration guidance on race in admission is more political theater than policy upheaval, but it is a sign that the debate over affirmative action is far from settled. We must be prepared to defend -- and scrutinize -- both our practices and our assumptions.
