Trump Highlights Stance on Affirmative Action With Guidance Rollback, Supreme Court Nominee

By Joelle Fredman, NASFAA Staff Reporter

The Trump administration last week rolled back Obama-era guidance on pro-affirmative action policies at colleges and universities. The documents withdrawn included prior guidance, related to the Fisher v. University of Texas at Austin case, supported by NASFAA and nearly 40 other higher education stakeholders.

While this withdrawal from 2016 guidance, published jointly by the Department of Education (ED) and the Department of Justice (DOJ), is not backed by law, it sheds light on the administration’s stance on affirmative action policies, as does the president’s recent nomination of a new Supreme Court justice. Justice Anthony Kennedy, who has supported affirmative action policies in past rulings, is set to retire later this month. On Monday night President Donald Trump nominated D.C. Circuit Judge Brett Kavanaugh, who has a history of supporting anti-affirmative action policies, as Kennedy’s replacement — a move which has garnered near universal opposition from Democrats.  

In one case, Kavanaugh wrote an amicus brief on behalf of the Center for Equal Opportunity — a group against affirmative action policies — in which he argued that a law in Hawaii prohibiting non-Hawaii natives from voting in elections for the Office of Hawaiian Affairs was unconstitutional because it violated both the fifthteenth and fourteenth amendments by establishing policy based on race. While the Supreme Court ruled in favor of Kavanaugh’s opinion that race should not play a role, it has in the past upheld other cases that support  affirmative action policies — documents which the Trump administration withdrew on the basis that they, among other documents, “advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI.”

Specifically, the administration withdrew documents on July 3 related to the affirmative action case of Fisher v. University of Texas at Austin (UT), which was decided in favor of the university in 2013 and upheld by the Supreme Court in 2016. The Fisher case challenged the constitutionality of UT’s admissions practices. UT, following state law, provides guaranteed admission to in-state residents who are in the top ten percent of their high school class. Though UT admits a majority of its students through the “top ten” program, it also reviews applicants who are not in the top ten. Those applicants are reviewed using various factors including grades, standardized test scores, an essay, leadership qualities and in some cases other “special circumstances,” which could include race and socioeconomic status.  It was this aspect of UT’s admissions policy that formed the basis of the Fisher claim.

Abigail Fisher, a white high school student in Texas who was denied admission to UT brought the case forward in 2012, arguing that minority students with lower credentials had received admission to UT over her and that this violated her rights under the equal protection clause of the 14th amendment.

When the case was heard by the Supreme Court a few years later, NASFAA joined 37 other higher education organizations in signing an amicus brief in support of UT’s policies to consider race during the admissions process, arguing that the university’s clearly defined goals for increasing diversity at its institution opened the doors to higher education to an array of students. They wrote that Fisher, in arguing that courts should “supervise and supersede educators’ judgments about educational objectives and the students who would best achieve them,” would be placing an impossible burden on lawmakers.

“That approach, at odds with controlling precedent, would dictate a single conception of sound educational policy for every college and university and truncate institutional pluralism, a hallmark of American higher education. Such homogeneity would be as untenable as it is impractical,” the groups wrote.

Siding with the argument in the amicus brief, the Supreme Court, in an opinion authored by Kennedy, wrote that the university was compliant in laying out specific goals for the diversity of its student body as well as how those goals would enhance students’ educational experiences.   

“A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. The record here reveals that the University articulated concrete and precise goals—e.g., ending stereotypes, promoting ‘cross-racial understanding,’ preparing students for ‘an increasingly diverse workforce and society’ and cultivating leaders with ‘legitimacy in the eyes of the citizenry’—that mirror the compelling interest this Court has approved in prior cases,” Kennedy wrote.

Prior to Trump’s announcement of his replacement for Kennedy, former Education Secretary and CEO of The Education Trust John B. King Jr. said that he is “deeply disappointed in the Trump administration’s rollback of joint guidance by the U.S. Departments of Justice and Education that promotes diversity and integration on campuses and in schools across the nation,” and that filling the Supreme Court seat will be crucial to the future of affirmative action policies.  

“This administration’s continued and cruel attacks on civil rights and justice represent a horrific attempt to unravel the very fabric of our democracy. With the search underway for Justice Anthony Kennedy’s replacement on the Supreme Court, the need could not be more urgent for advocates to be vigilant and fight relentlessly for equity and justice, especially for our nation’s most underserved students and families,” he wrote in a statement.  

American Council on Education (ACE) President Ted Mitchell said that with this withdrawal Trump is sending the “wrong message to institutions that are committed to following four decades of Supreme Court precedent.”

“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,” he wrote in a statement.

Also of note is that another significant member of the Trump administration, Attorney General Jeff Sessions, has recently involved DOJ in investigating a case of alleged discrimination at Harvard against Asian American students. Last month, a newly-formed group of students and parents, the Students for Fair Admissions, Inc. filed a brief against the school demanding a trial, arguing that “[s]tatistical evidence reveals that Harvard uses ‘holistic’ admissions to disguise the fact that it holds Asian Americans to a far higher standard than other students and essentially forces them to compete against each other for admission.” The group further argued that Harvard was not in compliance with new rules from the Fisher case that “unambiguously requires schools to implement race-neutral means to achieve student body diversity before turning to racial classifications and preferences.” The trial is set for October.


Publication Date: 7/11/2018

Tony L | 7/12/2018 10:17:30 AM

Amend my previous comment: It wasn't just "whites" excluded, it was all "non-Hawaiian natives"...big difference between the two, so I wanted to clarify. :-)

Tony L | 7/12/2018 10:14:55 AM

"This administration’s continued and cruel attacks on civil rights and justice represent a horrific attempt to unravel the very fabric of our democracy..." It seems to me that Hawaii's law that Kavanaugh overturned was an attempt to unravel the very fabric of our democracy by excluding a segment of Hawaiian society (whites). If anything, he's PRO-democracy based on that argument...

Daniel R | 7/11/2018 11:56:16 AM

Wait, we're supposed to be concerned or see some type of connection, at least in part, because Kavanaugh opposed what appears to be race-restricted voting laws? Interesting article.

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