We learned last week that the Trump administration is looking for lawyers interested in investigating and suing universities over affirmative action admission policies believed to discriminate on the basis of race.
There’s still a lot of detail to be worked out — it’s not clear, for instance, exactly whom the Justice Department considers at risk of discrimination — but supporters and critics of the effort believe admissions programs that can give members of generally disadvantaged groups, like black and Latino students, an edge over other applicants with comparable or higher test scores are the clear target.
No surprise there. If there’s one thing we know about this administration, it is this: how to endear itself to its base.
Immigrants are stealing your jobs. Blacks and browns are taking your seats in college.
But what’s really going on here?
Brenda Shum, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, said this latest move by President Donald Trump is reflective of a worldview that is regressive, narrow and noninclusive.
“We believe that this is another step forward in a broader and more aggressive campaign to roll back the civil rights of some of our historically disadvantaged students, and this includes trans youth, women and girls and students of color,” Shum said. “This move by the Justice Department should be viewed in the context of other decisions by this administration to shift its policies related to voting, policing, immigration and employment.”
The Lawyers’ Committee for Civil Rights Under Law, thank God, has been focused on this administration’s efforts to obstruct civil rights enforcement, and has condemned repeated actions taken to reverse or delay action in active matters handled by the Civil Rights Division.
The Supreme Court, according to Michael Moreland, a professor of law and religion at Villanova University who closely watches this area of constitutional law, has consistently said in a series of cases that the use of race must be limited or “narrowly tailored” to achieve a college’s interest in admitting a diverse class.
“Colleges have to show that available race-neutral means of evaluating applicants are inadequate,” Moreland said. “The Civil Rights Division of the Department of Justice has the authority to inquire whether a college’s practices are consistent with these requirements or use race too broadly, as the Supreme Court held in 2003 when it struck down the race-conscious measures in the University of Michigan’s undergraduate admissions program.”
Shum says Moreland is right in that our colleges and universities have a constitutionally protected interest in achieving diverse learning environments that allow for interaction between students from different cultures and that race is one of many factors that can be taken into consideration.
While the Justice Department has an obligation to challenge and investigate race discrimination in college admissions, Shum said it’s a myth that race-conscious admission policies constitute impermissible race discrimination. It perpetuates the idea that qualified white or Asian-American applicants are being displaced by less-qualified minority applicants, but the empirical data does not support that.
If you’re a minority by race or gender, you’ve had to contend with that theory. You only got that job because you’re black or female or both. You were admitted only because you’re black. If I had a dollar for every time I’ve been told that, I’d be rich.
That kind of thinking, of course, isn’t just limited to the uneducated.
Supreme Court Justice Antonin Scalia drew outrage in 2015 when he suggested affirmative action creates mismatches between students and universities.
"There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well," Scalia, who died in 2016, argued in the Fisher v. University of Texas affirmative action case.
The “mismatch theory” Scalia was alluding to asserts that minority applications who get an unfair advantage find themselves unprepared for college-level work and unsuccessful, and should apply to and enroll in less-competitive institutions that are better matched to their ability.
If the argument was good enough for Scalia, I guess it’s good enough for Trump and Attorney General Jeff Sessions.
Shum, who is Asian and has heard the same argument from her white male peers, said it’s predictable that some people equate affirmative action with unfair advantage.
“It’s been a successful strategy to undermine some of the most effective policies that are trying to address this long-standing effect of structural and systemic discrimination,” she said. “But it also demonstrates a lack of awareness that there is research that demonstrates some of these merit-based admission criteria that we want to believe are objective are still influenced by cultural and racial bias, and that includes grades and standardized test scores.”
If you still believe like our president that black kids are pushing white kids out of their college seats, here are some numbers worth considering.
According to the Department of Education, the 18- to 24-year-old population in the United States in 2015 wasestimated to be 55.7 percent white, 14.2 percent black, 22.3 percent Hispanic, and 4.5 percent Asian or Pacific Islander. The demographic breakdown of enrolled college students in 2015, on the other hand, was nearly identical to the demographic makeup of all college-age students: 57.6 percent of students were white, 14.1 percent were black, 17.3 percent were Hispanic, and 6.8 percent were Asian/Pacific Islander. According to these figures, whites were overrepresented in college by about 2 percentage points and Hispanics were underrepresented by 5 percentage points.
Research has shown that affirmative action does not impact the overall rate at which racial minority students enroll in college. It does, however, help minority students get into more selective colleges.
That’s a good thing.
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