The Justice Department signaled Wednesday that it would examine “race-based discrimination” in college admissions, alarming some civil rights advocates who fear that the Trump administration is trying to roll back affirmative action policies.
In an internal job posting, the department’s Civil Rights Division said it was seeking lawyers willing to work on an investigation and potential litigation involving race-based admissions policies.
Although Justice Department officials said the move does not herald a shift toward attacking race-conscious admissions policies, civil rights advocates and legal experts said the investment of resources could have a ripple effect that hurts minority students hoping to enroll in college.
In addition, they say, the effort by Atty. Gen. Jeff Sessions, who as an Alabama senator voiced opposition to affirmative action, is another stark contrast between the priorities of his Justice Department and those of former Atty. Gen. Eric H. Holder Jr., who served under President Obama.
“Whenever there’s a credible allegation of discrimination on the basis of race, the department will look into it,” said a Justice Department official, who spoke on condition of anonymity because of the department’s policy to not discuss personnel matters.
The Justice Department’s job posting was first reported late Tuesday by the New York Times. At her regular briefing on Wednesday, White House Press Secretary Sarah Huckabee Sanders acknowledged that the newspaper had obtained a “leaked internal personnel posting,” but declined to comment on it, except to say: “The Department of Justice will always review credible allegations of discrimination on the basis of any race.”
Hours later, the Justice Department issued a statement saying the posting was in response to a complaint filed in 2015 regarding allegations of discrimination against Asian Americans in an unidentified university’s admissions practices.
In recent years, the Supreme Court has mostly ruled favorably on affirmative action in college admissions, although it has upheld some restrictions at the state level that have significantly chipped away at the practice.
Last year, in a 4-3 decision, the Supreme Court upheld the use of race as one factor in evaluating college applicants. The case, Fisher vs. University of Texas, centered on Abigail Fisher, a white Texas resident, who filed suit after she was denied admission there. She had argued that the university’s consideration of race in admissions discriminated against her because she was white.
In cases in 2003 and 1978, the Supreme Court ruled that race could be among several factors weighed when admitting students.
The 1978 case, Regents of University of California vs. Bakke, was a major turning point, said Lee Bollinger, president of Columbia University, who argued in favor of affirmative action before the Supreme Court in 2003 in cases involving the University of Michigan.
In the Bakke case, which involved a medical school applicant to UC Davis, Justice Lewis F. Powell Jr. wrote that university leaders could not use affirmative action to correct social injustice, but could as a way to achieve a diverse student body which would contribute to a "robust exchange of ideas."
“It severed a major reason for using the policy,” Bollinger said.
The job posting at the Justice Department caused concerns among civil rights groups that fear the Trump administration will seek to investigate claims similar to Fisher’s.
Jessica A. Levinson, a professor at Loyola Law School in Los Angeles, said the Justice Department could indirectly intimidate universities from using race as a factor in admissions.
“This easily could have a chilling effect, as universities would not want to be subject to being sued or investigated,” Levinson said.
Derrick Johnson, interim president and chief executive of the National Assn. for the Advancement of Colored People, said in a statement that the Justice Department “seems laser-focused on achieving rights and privileges for ‘just-us,’ totally excluding people of color.”
“Affirmative action was not created as a way for African-Americans, Latinos, or Asian-Americans to get an unfair advantage over their white peers,” Johnson said. “It’s a mechanism to level the playing field and create equal opportunity for people of color following decades of oppression. We should promote and foster efforts to promote diversity on college and university campuses not hinder it.”
And Matt Cregor, education projects director at the Lawyers’ Committee for Civil Rights and Economic Justice, said, “If they want to go after affirmative action, they should go after legacy.”
So-called legacy admissions policies, which favor the children of alumni, ultimately exclude minorities from pipelines to leadership jobs, said USC Rossier School of Education professor Estela Bensimon.
“Criteria have changed over time, depending on who was being advantaged,” she said. “When Jews were outscoring non-Jewish white students, the criteria for admission at elite universities changed to include ‘character.’”
Legacy is typically an issue at private schools, which have generally been outside the scope of efforts to rein in affirmative action.
While the courts have affirmed the use of affirmative action in higher education, eight states, including Michigan, Oklahoma, California and Arizona, have barred its use. The state bans generally arose from ballot initiatives or state legislators.
“There’s long been a perception that there were enormous preferences given to minority students and that this crowded out lots and lots of white students,” said Jesse Rothstein, professor of public policy and economics at the UC Berkeley.
In California, voters greenlighted the ban through a ballot initiative in 1996, Proposition 209, which passed with 54.6% of the vote.
The measure’s passage initially decreased black and Latino enrollment throughout the University of California system, particularly at its most selective schools. But UCLA has used other methods, such as recruiting in high-minority areas, to boost its diversity: In 2015, the school caught up to its pre-Proposition 209 levels of minority student enrollment.
“UC has been increasing its outreach efforts to historically underrepresented groups like Latinos and African Americans, while still bound to the strictures of Proposition 209, which bars consideration of race or ethnicity in granting admission,” UC President Janet Napolitano said in a statement. “It would be tragic, to say the least, if these efforts somehow ran afoul of this reported misguided Justice Department initiative.”
One reason states started banning affirmative action, Bollinger said, is a disconnection from history. During the civil rights movement and the Jim Crow era, Bollinger said, people were “painfully aware of the injustices of slavery and Jim Crow laws that favored whites over African Americans and Hispanics,” he said. “It’s hard for movements to sustain themselves.”
In 1997, Sessions told the Senate Judiciary Committee that affirmative action was a “very, very difficult subject.“
”I think it has, in fact, been a cause of irritation and perhaps has delayed the kind of movement to racial harmony we ought to be going forward [with] today. I think it makes people unhappy if they lost a contract or a right to go to a school or a privilege to attend a university simply because of their race,” he said at the time.
More recently, Sessions’ Justice Department has staked out positions on civil rights that have concerned several groups and have contrasted with positions under the Obama administration.
Last month, the department filed a brief in an employment discrimination case arguing that the Civil Rights Act does not protect people who are fired because of their sexual orientation. And in July, the department reversed an Obama-era position on a Texas voter identification law. The department filed a motion in a federal court to dismiss the department's earlier claim that the ID law was enacted with the intention of discriminating against minority voters.
In a May memo to federal prosecutors, Sessions instructed them to pursue the harshest punishments legally allowed, another reversal of an Obama-era move that gave federal lawyers more leeway to reserve such prosecutions for repeat offenders and people who had committed the worst of crimes. Justice Department officials hope the changes at the federal level — which prosecutes a sliver of crimes across the country — will trickle down to a similar approach to crime in states.
Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, which advocates on behalf of civil rights groups, focused on affirmative action Wednesday, saying the move by the Justice Department was another example of the administration “changing course on a key civil rights issue.”
“The announcement today that it is now actively seeking to challenge efforts that colleges and universities have undertaken to expand educational opportunity is an affront to our values as a country and the very mission of the Civil Rights Division,” Gupta, who led that division under Obama, said in a statement. “Longstanding Supreme Court precedent has upheld the constitutionality and compelling state interest of these policies, and generations of Americans have benefited from richer, more inclusive institutions of higher education.”
Times staff writer Joseph Tanfani in Washington contributed to this report.