The Trump administration’s decision to withdraw an Obama-era “guidance document” encouraging colleges to take race into account in their decisions about admissions is disappointing though not surprising. This is an administration that lacks a commitment to meaningful racial diversity in education or to the kind of affirmative action policies that encourage it.
Fortunately, Tuesday’s actions by Atty. Gen. Jeff Sessions don’t alter the law. The Supreme Court decisions the Obama administration relied on are still in effect, and admissions officers may still adopt race-conscious admissions policies if they are necessary to achieve the educational advantages of “diverse learning environments.”
Most universities that consider race as one factor in admissions decisions will continue to do so regardless of what the administration says — so long as they are not forbidden by state law from doing so. (In some places they are. Under Proposition 209, approved by voters in 1996, state universities in California are prohibited from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”)
The real problem is not that the Trump administration withdrew the guidance; it is that the Supreme Court over the years has taken far too grudging a view of when race-conscious policies are justified. And with the retirement of Justice Anthony Kennedy, it isn’t clear that even those precedents are secure.
The best historical, constitutional and moral argument for allowing universities to take race into account in admissions decisions is that a legacy of discrimination has deprived many African American and other minority students of the educational opportunities enjoyed by other applicants. When universities began to try to diversify their student bodies in the 1970s, compensation for the effects of past discrimination was an important objective, though not the only one.
But when the Supreme Court upheld some use of race in admissions decisions in its 1978 decision in Regents of the University of California vs. Bakke, the focus was on another goal: what Justice Lewis Powell referred to as “the attainment of a diverse student body.” Diversity, Powell noted, promoted the atmosphere of “speculation, experiment and creation that [that is] so essential to quality of higher education.”
The court reaffirmed Powell’s rationale in a 2003 decision involving the University of Michigan Law School and again in 2016 when it upheld the University of Texas’ policy of taking race into account in filling a quarter of the seats in its freshman class. (The rest of the places were filled on the basis of the applicants’ high school class rank.)
Yet even as it did so, the court cautioned universities that the “diversity” rationale wasn’t a blank check. It said that the University of Texas going forward must “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.” That makes it difficult for universities to navigate the legal complexities, which is why the Obama administration offered guidance.
The narrowness of the Supreme Court’s “diversity” justification places a needless straitjacket on universities that seek not only to create a diverse student body but also to redress past discrimination. Yet even this limited legal protection for affirmative action may not be permanent.
When the court upheld the University of Texas plan in 2016, it was by a 4-3 vote with Kennedy writing the majority opinion. (Justice Elena Kagan was recused from the case presumably because she had worked on it as U.S. solicitor general and there was a vacancy on the court created by the death of Justice Antonin Scalia.)
Even if one assumes Kagan would support a race-conscious policy in a future case, Kennedy’s retirement raises the question of whether a future majority of the court might make it even harder for universities to take race into account. Whoever is chosen by President Trump to succeed Kennedy should be questioned by senators about his or views on this issue.
Why does this matter? Americans are uneasy about racial classifications and even members of the court who have upheld them have expressed reluctance. In her 2003 majority opinion in the University of Michigan Law School case, Justice Sandra Day O’Connor wrote that “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was unrealistic. The inequalities that affirmative-action programs try to address are almost certain to persist well beyond 2028.
And while “race-neutral” policies such as outreach and advertising to minority communities to solicit applicants are helpful, prohibiting any consideration of race makes it harder for universities to achieve their diversity goals. (That is suggested by the experience of UC Berkeley, where the percentage of African American students declined after Proposition 209 took effect and has yet to return to pre-Proposition 209 levels.)