The Trump administration has rescinded guidance which encouraged colleges and schools to consider race in their decision-making processes around enrolment.

By Daniel Herborn

Posted on July 4, 2018

On 3 July 2018 Attorney General Jeff Sessions revoked 24 guidance documents, some of which promoted affirmative action in schools and universities. Affirmative action can be defined as action favouring those who tend to suffer from discrimination.

Sessions announced the US Justice Department was scrapping the documents as they were “unnecessary, outdated, inconsistent with existing law, or otherwise improper.”

Seven of the documents had been issued jointly with the Education Department’s Office for Civil Rights under the Obama administration and advised decision-makers at schools and universities that they could explicitly consider race in their admissions process.

One of the now archived documents states the Department of Justice (DOJ) and Department of Education (ED) “recognize the compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body” and goes on to say the Supreme Court has made clear that race can be taken into account during student admissions.

The Trump administration will now encourage school superintendents and college presidents to adopt a race-neutral approach to admissions.

The move to withdraw the guidance documents does not change the law per se but illustrates the administration’s position on affirmative action.

In his statement, Sessions said he was removing the guidance documents because they had been improperly made.

“The American people deserve to have their voices heard and a government that is accountable to them. When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President” the statement read.

“In the Trump administration, we are restoring the rule of law. That’s why in November I banned this practice at the Department and we began rescinding guidance documents that were issued improperly or that were simply inconsistent with current law.

“Today we are rescinding 24 more and continuing to put an end to unnecessary or improper rulemaking.”

Beyond questions of process, affirmative action has long been a point of difference between the Republican and Democrat parties. The announcement that the guidance documents were being removed was seen as a return to the Bush-era stance on the issue.

Colleges respond to affirmative action being scrapped

Universities have vowed to keep affirmative action in place despite the guidance being revoked.

“We are very disappointed in the Trump administration’s announcement that colleges and universities should no longer use race and ethnicity as one of many background factors when making admissions decisions,”said Peter McPherson, president of the Association of Public and Land-grant Universities, in a statement.

“Public universities have long served a critical role in providing a quality education to students from different backgrounds. They recognize that all students benefit from being on campus with others who bring various life experiences and perspectives.

“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.”

“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 Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law.

Harvard University spokesperson Melodie Jackson told CNN the college would “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.”

Affirmative action in the courts

Trump is likely to soon have a Supreme Court more amenable to ending affirmative action after the retirement of swing voter and affirmative action supporter William Kennedy.

2016 was the last time the Supreme Court considered the issue of affirmative action. It ruled 4-3 in favour of the constitutionality of affirmative action with Kennedy writing for the four justice majority.

Students for Fair Admissions recently took legal action against Harvard University, arguing it consistently rated Asian applicants lower on personality traits such as kindness and likeability. Under the Trump administration, DOJ has sided with the action against the Ivy League university.