Justice Department may reopen case against race-based university admissions
Race-based college admission policies in the spotlight, again
August 2, 2017
Updated: August 2, 2017 8:45pm
Reports that the Justice Department is poised to investigate and potentially litigate race-based affirmative action at colleges and universities shocked many higher education observers – including Edward Blum, who leads two national organizations stringently opposed to the practice.
Blum, who backed the Sugar Land student Abigail Fisher in her Supreme Court case against the University of Texas at Austin last summer, now “welcomes” support from students, advocacy groups and, yes, the federal agency.
“If the decision (is) made to help Students for Fair Admissions in (its) cases,” he said, “we would be greatly delighted.”
The news reports, which a federal official challenged Wednesday, kicked up again the dust that had settled beneath last summer’s Fisher v. UT-Austin ruling which found the university’s affirmative action policies constitutional.
The agency’s civil rights division, The New York Times reported this week, is recruiting lawyers for the directive, which it said relates to race-based discrimination against white applicants in college and university admissions.
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A sweeping directive as described by the Times could bring new legislation against public and private colleges and universities that consider an applicant’s race when they consider which lucky students to accept, legal experts said Wednesday.
Attorneys described possible ways that such a directive could play out and said, if the reports are confirmed, that elite universities that consider race in admissions should begin collecting data on their admissions policies, anticipating potential challenges.
Sarah Isgur Flores, the Department of Justice’s spokeswoman, said late Wednesday that the job posting described by The Times sought volunteers to investigate an administrative complaint that the Obama administration left unresolved.
The Times, quoting an obtained document, said the department sought lawyers to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”
“This Department of Justice has not received or issued any directive, memorandum, initiative or policy related to university admissions in general,” Flores said in a statement, calling the Times’ story inaccurate.
The Times’ obtained document implied that the federal government could investigate campuses that consider applicants’ race and then challenge the legality of specific policies in the courts, said Susan Sturm, a Columbia Law School professor specializing in higher education and institutional and social change.
Considering race in admissions to recruit a diverse student body, Sturm said, is “justified constitutionally.”
Still, she said, “the risk is that colleges and universities will cave into a policy that threatens to shut down lawful efforts (toward) diversity.”
If a broader investigation were to proceed, it would be sure to be divisive in Texas, home to the nation’s most recent large-scale affirmative action fight.
Abigail Fisher, the white Sugar Land student backed by Blum who sued UT-Austin after she was denied admission in 2008, argued that the university’s decision to admit non-white students with worse grades than hers violated the 14th Amendment. UT-Austin won that decision 4-3 last summer.
Mishell Kneeland, an assistant attorney general working for UT-Austin on the Fisher v. Texas case in 2008, said she would expect the Supreme Court’s new composition to side 5-4 in favor of affirmative action being constitutional, should litigation rise to that stage.
Justice Elena Kagan, who recused herself in the Fisher case, would likely support affirmative action policies, and Justice Neil Gorsuch would likely oppose them, she said.
Still, she said, that’s no assurance for universities who may be targets of future investigations.
“I can assume right now all of the admissions people at these schools are looking at (their policies) and trying to figure out if they could possibly be a target,” she said.
Reports of this new directive come shortly after Blum’s group Students for Fair Admissions filed a new lawsuit in Travis County District Court against UT-Austin, alleging that its use of race in admissions violates the Texas Constitution.
UT-Austin slammed the new suit as a “retread” of prior litigation, a characterization Blum rejects.
‘Wait a few years’
UT-Austin president Gregory Fenves said earlier this week that the university still “believes in and will defend” its admissions processes, responding to the new lawsuit. He said a diverse campus is “essential” to prepare students to work in a global business environment.
UT-Austin spokesman J.B. Bird said in an email Wednesday that the university will “closely review any DOJ policies as they are released.”
Attorneys said Wednesday that they believe UT-Austin is likely protected from future litigation, given the recent Fisher ruling.
“If you go after a university that’s passed muster,” Kneeland said, “I would wait a few years.”
Colleges that weigh race in admissions often say that it’s just one of many things they consider when making the decision on whether to admit an applicant.
Sturm said race-based affirmative action policies generally are in practice at elite schools with low acceptance rates.
Rice University spokesman B.J. Almond declined to comment on Wednesday, but the university does consider race in its admissions processes.
The University of Houston does not, spokesman Mike Rosen said in an email. UH’s decisions ride on applicants’ test scores and class rank.
Neither does Texas A&M University, spokeswoman Amy Smith said, adding that the school has bolstered outreach to diverse prospective students to urge them to apply.
Aggies set up regional advisers from El Paso to Dallas to the Rio Grande Valley to meet with prospective students and answer any questions.
“If this is a place that is of interest,” she said, “we certainly want to make sure we welcome people of all backgrounds.”
Michael Olivas, a law professor at the University of Houston who specializes in higher education law, said many campuses are “desperate for students” and aren’t weighing race as they consider who to accept.
For months after the Fisher ruling, conversation about affirmative action at UT-Austin died down.
But in the fall semester, a campus protest brought forward students’ intense emotions on the topic.
UT-Austin’s chapter of the Young Conservatives of Texas held an “affirmative action bake sale” on the campus’ West Mall, charging different prices for goods depending on the race and gender of each customer. Hundreds of protesters came to the scene, where groups of students yelled viscerally at one another.
After the Fisher ruling, Gregory Vincent, UT-Austin’s former vice president for diversity and community engagement, recalled feeling that affirmative action was well litigated, from the 2003 case Grutter v. Bollinger to the present.
And admissions professionals at private and public universities had “faithfully” followed the mandate from that 2003 case, to use race as just one factor among many and to narrowly tailor their policies.
Still, Vincent, who is now the president of Hobart and William Smith Colleges in New York, recalled saying after the ruling, “elections have consequences.”
“The one thing I did mention was if the composition of the court changed dramatically,” he said, “the door could be opened again.”