Trump administration rescinds Education and Justice guidance on affirmative action

The administration rescinded Obama-era affirmative action guidance on Tuesday.

U.S. Education Secretary Betsy DeVos speaks to the news during a press conference held at the Heron Bay Marriott about her visit to Marjory Stoneman Douglas High School in Parkland on March 7, 2018 in Coral Springs, Florida. CREDIT: Photo by Joe Raedle/Getty Images
U.S. Education Secretary Betsy DeVos speaks to the news during a press conference held at the Heron Bay Marriott about her visit to Marjory Stoneman Douglas High School in Parkland on March 7, 2018 in Coral Springs, Florida. CREDIT: Photo by Joe Raedle/Getty Images

The Trump administration on Tuesday rescinded guidance released by the Obama administration’s education and justice departments on affirmative action in higher education. The 2011 and 2016 guidance explained how institutions of higher education should approach admissions to have a more racially diverse student body.

In the 2011 guidance, the departments said there was a “compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body” and “These benefits greatly contribute to the educational, economic, and civic life of this nation.”

This included some explanation of how institutions may “assign different weights to different diversity factors based on their importance to the program” but “race cannot be given so much weight that applicants are defined primarily by their race and are largely accepted or rejected on that basis.”

In 2016, the administration officially stated this view again after the U.S. Supreme Court upheld an affirmative action program at the University of Texas at Austin in the case Fisher v. University of Texas at Austin.


Catherine E. Lhamon, assistant education secretary for civil rights during the Obama administration, said of the reported move to rescind the guidances, according to the Washington Post, “The Supreme Court has been consistent over decades in its rulings on lawful use of race in affirmative action and the guidance the Trump administration rescinds today offered nothing more than a clear and practical statement of the law and how to comply with it. Taking away that guidance undermines the steps toward equity school communities have long been taking.”

The joint guidance rescinding the Obama administration guidances read, “The departments have reviewed the documents and concluded that they advocate policy preferences  go beyond the requirements of the Constitution, Title IV and Title VI [of the Civil Rights Act of 1964]. Moreover, the documents prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.”

Last year, the Department of Justice said it planned to investigate and possibly sue universities over their affirmative action policies. Yet, despite arguing for years against affirmative action in admissions, conservatives have stayed relatively quiet on the consideration of legacy in admissions, or whether a student’s relatives also attended the same university.

“There is also preference for children of non-alumni who are rich and likely to give a lot of money. There is preference for children of influential politicians and celebrities. There is preference for people who play sports that are almost always limited to the rich,” Daniel Golden, who wrote the 2006 book, The Price of Admission: How America’s Ruling Class Buys Its Way into Elite Colleges — and Who Gets Left Outside the Gates, told ThinkProgress last year. He said it the problem is only getting worse.

Rep. Emanuel Cleaver (D-MO) tweeted that the decision was “disgraceful.”

Vanita Gupta, former head of the civil rights division for the Justice Department under Obama, tweeted that rescinding the guidance shows the department is not committed to diversity in higher education.

Ted Mitchell, the president of the American Council on Education, said in a statement before the announcement, “Colleges and universities that consider race and ethnicity as one factor in a holistic admissions review are committed to following the law of the land. And make no mistake, this is the law of the land. Today’s announcement does not change that.”


Conservatives who have long opposed affirmative action in college admissions and attempt to bolster their argument by claiming that Asian students will lose out in admissions processes that use a holistic evaluation that also considers racial diversity. Right now, Students for Fair Admissions is suing Harvard for discriminating against Asian students, and the brief filings are scheduled for later this month. The leader of the group is a man who has long fought against affirmative action, Edward Blum, a legal strategist who was involved in the Fisher case.

Conseratives use the model minority stereotype to attempt to pit racial and ethnic groups against each other. As OiYan Poon, a professor of education at Loyola University Chicago, told Vox in 2016, “The racial mascot as an Asian American provides a kind of racial cover to deflect accusations of their efforts as being anti–civil rights. In fact, they can turn it around and say this campaign is for civil rights because the victims [they’re] fighting for are not white. They are a minority.”

This fight has been going on for decades. In 1989, Congressman Dana Rohrabacher (R-CA) introduced HR 147, which was designed to investigate undergraduate admissions processes discriminating against Asian applicants. It had bipartisan support until some groups dropped out of concern that it was really an attack on affirmative action.

Many Asian American advocacy groups involved in policy discussions over race conscious affirmative action have pushed against the argument that Asian Americans would be harmed by consideration of race as part of a holistic review. These groups have also pointed out that a lot of groups under the large umbrella of Asian face economic barriers and have unaddressed educational needs.