Trump move against affirmative action may spark Supreme Court battles

The Trump administration’s scrapping of affirmative action policy guidelines is likely to have a “chilling effect” on diversity initiatives in US universities and could result in the Supreme Court “narrowing” the use of race-conscious admissions, experts have warned.

In a joint letter published on 3 July, the US Education and Justice departments announced that they had rescinded seven Obama-era policy guidelines on affirmative action – the policy of improving educational and employment opportunities for members of minority groups.

The move contradicts the law; in a series of cases over the past 40 years, the Supreme Court has ruled in favour of affirmative action in university admissions.

Betsy DeVos, the education secretary, said in a statement that “the Supreme Court has determined what affirmative action policies are constitutional” and “schools should continue to offer equal opportunities for all students while abiding by the law”.

But the upcoming retirement of Anthony Kennedy, associate justice of the Supreme Court and an advocate of affirmative action, will give Donald Trump an opportunity to nominate a successor who is aligned with his own views on this topic, according to higher education policy experts.

Mary Fischer, associate professor of sociology at the University of Connecticut, who conducts research on minorities in higher education, said that the withdrawal of affirmative action guidelines “could very well have a chilling effect on race-conscious admissions in higher education”.

“This reversal will also likely set the stage for future Supreme Court challenges to affirmative action, which I see as the larger threat to diversity in higher education coming from this policy announcement, particularly in light of the recent resignation from the court of Justice Kennedy, who has been a proponent of affirmative action,” she said. “His replacement will almost certainly be in opposition.”

Peter McDonough, vice-president and general counsel at the American Council on Education, said the move potentially "offers the court an opportunity to further explain, narrow or expand what it has blessed before, without actually changing the federal law, which has, for decades, permitted narrowly tailored consideration of race and ethnicity when assembling an incoming class of students".

He added that while universities that “fundamentally believe in the benefits derived from campus diversity” are unlikely to change their admissions policies based solely on the new announcement, some institutions may have interpreted it “as a message saying that taking race or ethnicity into account at all while making admissions decisions can put you in the cross hairs of a complaint, or get you investigated”.

“That can have a chilling effect,” he said.

Neal Hutchens, professor of higher education specialising in legal issues at the University of Mississippi, agreed that even if the Supreme Court does not “outright overturn the legal permissibility of affirmative action in higher education, the appointment of a justice antagonistic to affirmative action could result in decisions that narrow its use”.

“Especially with the appointment of a new justice, it seems unlikely for these legal attacks to fade away,” he said.

Harvard University is currently embroiled in a lawsuit alleging discrimination against Asian Americans in its admissions process, which is expected to go to trial in October.

Last year, an internal Justice Department document obtained by The New York Times revealed that the Trump administration was preparing to investigate and potentially sue US universities over affirmative action admissions policies that are perceived to discriminate against white applicants.

ellie.bothwell@timeshighereducation.com