This article has been updated as of February 11, 2020.
The Trump Administration is attacking affirmative action policies in unprecedented ways. Kori Cooper shows how these attacks threaten the fundamental human right to equality and education as set forth by the United Nations, and perpetuate White supremacy.
On July 3, 2018, the Trump administration announced that they were repealing pro-affirmative action policies put in place during the Obama administration. In one particular pair of policy guidance documents issued in 2011, the Obama-era Education and Justice Departments informed schools at all levels of education across the country that the Supreme Court has established “the compelling interests” of the states in achieving diversity on the campuses of educational institutions. They concluded that the court “has made clear such steps can include taking account of the race of individual students in a narrowly tailored manner.” The Obama-era policy replaced the Bush administration-era view that discouraged affirmative action. The Bush-era guidance had been removed from the government website during the Obama administration, but has now re-appeared on the US Department of Education website.
By rescinding the instruction that campus diversity is a “compelling interest,” the Trump administration has directly infringed on the human right to “equality in dignity and rights,” and access education as set forth by the United Nations in Articles 1 and 26 of its Universal Declaration of Human Rights. Educational institutions are now under increased pressure to abolish affirmative action measures aimed at increasing the number of minority students admitted.
Universities that use affirmative action policies to increase campus diversity are now highly vulnerable to civil litigation brought by rejected applicants and other special interest groups. In reviewing affirmative action cases, courts apply what is called a “strict scrutiny standard” to determine whether the use of racial classifications is necessary in order to satisfy a compelling state interest and whether those measures are narrowly tailored enough to do so. It is up to the courts to identify what interests the state finds compelling enough and determine whether the affirmative action plan under review is not overly broad. Grutter v. Bollinger (2003) and Regents of the University of California v. Bakke (1975) are two often cited Supreme Court decisions that consider the use of race classifications in universities’ admissions process. Judicial precedent demonstrates that absent the ability to prove that there is a compelling state interest in achieving diversity, the argument for using race as an admissions factor cannot survive the strict scrutiny test.
Before the principle that there was a compelling state interest involved in achieving diversity on school campuses was established, the Supreme Court held that the UC Davis Medical School’s use of racial quotas in their admission process could not withstand judicial review of constitutionality under a standard of strict scrutiny. Regents of the University of California v. Bakke, was brought by a White applicant who believed that he was not admitted to the school of his choice due to affirmative action measures aimed at increasing the number of minorities at the school. The university had set aside 16 out of 100 seats for minorities. The Supreme Court Justices were divided as to whether UC Davis Medical School’s use of race in determining who they would admit was enough to trigger strict scrutiny. Justice Brennan expressed the opinion that intermediate scrutiny should apply instead and that Bakke, the applicant, should not have won, but in siding with the majority, Justice Powell expressed the opinion that the standard of strict scrutiny should apply regardless of whether a historically disadvantaged race is being burdened or benefited. Although Black Americans in particular were not identified by the university as the intended recipients of all 16 of these seats, the racial group became the lightning rod of discussion in this and other affirmative action cases. Courts adopted the perspective that policies that appear to be aimed at benefiting historically disadvantaged minorities ––, but Black Americans especially it seems ––, should be viewed as suspiciously by courts as policies that appear to advantage White Americans.
About three decades of political and social evolution later, the Supreme Court majority held in Grutter v. Bollinger that because student body diversity is a compelling state interest, the University of Michigan law school’s use of race in university admissions was justifiable. Writing for the majority, Justice O’Connor emphasized that the compelling state interest arose from the fact that the educational institution was promoting “diversity,” not providing a remedy for chattel slavery, colonization, genocide or any other of the targeted harms that have occurred in the US. She also pointed to numerous expert studies and reports showing that in order to properly prepared students to be leaders in a globalized society, they must acquire skills that “can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Indeed, a more recent study conducted by business professors Cristian Deszö of the University of Maryland and David Ross of Columbia University affirms that increasing gender diversity at the top firms in Standard & Poor’s Composite 1500 list leads to increased revenue. “Thus,” wrote O’Connor, “the Law School has a compelling interest in attaining a diverse student body.” With this opinion, the court established that strict scrutiny would not automatically prove fatal to a case in support of affirmative action if a compelling interest can be proven.
Despite the accumulation of evidence in support of affirmative action, the current administration has chosen to pursue retrograde public policies that decrease U.S. minorities’ already limited access to higher education. Unfortunately, the aim of affirmative action that the Supreme Court supported under the Obama administration was “diversity” within the context of today’s social environment, and so all students who identify as non-White are forced to compete for a limited number of spots at traditionally segregated educational institutions. With the repeal of the Obama-era guidelines, minority students face even more difficulties in gaining admission to these elite spaces and are even motivated to become litigious themselves.
By pitting marginalized racial groups against each other to compete for an even smaller number of seats, the Trump administration is appealing to its right-wing, White supremacist base of voters, rather than promoting access to education for all Americans. Take for example Students for Fair Admissions v. Harvard, a case now on appeal, in which Asian-American students argue Harvard University has systematically excluded some Asian-American applicants to maintain slots for students of other races. Again, disgruntled applicants and courts have become hyper-focused on arguing over whether Black Americans in particular ought to exist in academic spaces. However, a debate on affirmative action framed in this way has no merit because 1) racial minorities have not been, nor are they currently, the chief beneficiaries of affirmative action and 2) there is no evidence that minority applicants have an advantage over White applicants in the admissions process ––and actually quite the opposite occurs. In reality, White women have historically benefitted the most from affirmative action. Furthermore, Harvard admits more White legacy students than the total number of Black students admitted each year. In addition, it is difficult to account for all the applicants whose parents just purchased their admission by way of donation (a legal procedure in the US). It would be naive to assume that the Trump administration is unaware of how discouraging affirmative action in effect tightens the already limited window of opportunity through which minority students can access higher education. It is more likely that the effort to “make America great again” is a concerted effort on the part of the government to make institutions of higher learning predominantly White again.
The Trump administration’s pivot back to Bush-era public policy signals its desire to perpetuate profound and distinct human inequality in the US. Taking a page from the Bush-era trickle-down economics playbook, the government has implicitly adopted the policy stance that the social and financial elite, predominately made up of White Americans, is the demographic that the U.S. should be the most invested in supporting. This attitude is maintained despite data that consistently shows that the U.S. labor market excludes minorities. Minorities with the same qualifications as White Americans struggle to find employment, secure housing loans, and are incarcerated at far higher rates, contributing to the problem of wealth inequality along racial lines. In one study, “Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” University of Chicago economists Marianne Bertrand and Sendhil Mullainathan sent out thousands of fictitious resumes with names that are commonly perceived to be “African-American- or white-sounding” in response to help-wanted newspaper advertisements. They found that resumes with White names received 50 percent more callbacks for interviews. The disparity in job opportunities is even greater for minorities less qualified than their peers. By limiting equal access to education, the Trump administration is also limiting minorities’ ability to exercise the right to work and live free from discrimination. This state of affairs perpetuates our current situation in which the wealth gap between the ultra-rich and the poor in the US is widening.
Without affirmative action, there are few measures in place that check the ability of America’s most privileged citizens to monopolize the admissions system. In Preparing for Power, sociology professors Peter W. Cookson, Jr. of Georgetown University and Caroline Hodges Persell of New York University describe their study on private boarding school students, which shows that those at the top 16 boarding schools have a much higher likelihood of admission to educational institutions than those who do not come from such schools. These elite students are taught to embrace expectations of entry while for the average American, admission to an ivy league institution is as likely as winning the lottery. Moreover, the college racketeering enterprise recently uncovered by the FBI, in which rich and famous parents bribed test administrators and sports coaches, cheated on admissions evaluations, and defrauded officials at several schools on behalf of their adult-children, lays bare the erasure of academic mediocrity among the American elite in favor of upvoting the myth of minority inferiority and a whole host of other pernicious ideologies about the role of racial minorities in this country. In this way as well, the government is supporting admissions processes that are racially, financially, and socially exclusive.
Officials of the Trump administration argue that the Obama-era guidelines went beyond the requirements of the Constitution to “prematurely decide, or appear to decide, whether particular actions violate the Constitution or federal law.” Education Secretary Betsy DeVos, a wealthy former business chairwoman with no experience in the field of law or education previous to her appointment, told the Associated Press, “I think this has been a question before the courts and the courts have opined.” DeVos’ statement implies that courts have held affirmative action to be unconstitutional, but that is not what the courts have held. She may have misspoken and meant to refer to the Supreme Court decision on Gratz v. Bollinger (2003). In Gratz, the court held that the University of Michigan’s affirmative action measures were not narrowly tailored to achieve a compelling state interest. However, that holding merely indicated that the university had to adjust their affirmative action plan, not abolish it. The Supreme Court even upheld affirmative action as recently as in 2016 with its ruling on Fisher v. University of Texas at Austin (2016). InFisher, the court decided that UT-Austin’s admissions policy survived strict scrutiny in accordance with a previous ruling on the case, which ruled that strict scrutiny should be applied to determine the constitutionality of the University’s race-sensitive admissions policy.
In keeping with his administration’s public policy stance since the repeal in July, Trump has nominated people to the nation’s highest courts that oppose affirmative action. An example is Naomi Rao, who was recently confirmed by the Senate to take now-Supreme Court Justice Brett Kavanaugh’s vacant seat on the DC Circuit Court of Appeals. During her time as an undergraduate at Yale, Rao published a book review in the Yale Free Press she titled “In Defense of Authentic Elitism,” where she complained that we live in “this age of affirmative action, women’s rights, special rights for the handicapped and welfare for the indigent and lazy…. In our new feel-good era, everybody is okay, and political and academic standards can adjust to accommodate anyone.” This is an unabashedly ahistorical and unfactual account of what affirmative action purports to do and has accomplished. Rao’s muddy thinking on American history and affirmative action is a reflection of the Trump administration’s dehumanizing public policy views.
Altogether, a review of the Supreme Court’s rulings and peer-reviewed data demonstrate that the Trump administration has directly infringed on the human right to access education and equality in the US by revoking Obama-era public policy guidelines in support of affirmative action. The concept of affirmative action is often framed as an emotional one that indicates what your instincts of fairness are, but as this article has demonstrated, such a framing of the debate is not only unfactual, but ahistorical as well. Rather, administrative policies on affirmative action indicate what ideas of economic and social logic we are willing or unwilling to endorse. With this in mind, we may ask if Native-Americans, Black Americans, Asian Americans, and many other ethnic groups considered to be minorities in the US have been under-served by affirmative action measures put in place during the Obama administration and further previous administrations. The answer would be that they absolutely have been under-served, and continue to be under-served. This article does not argue that the past affirmative action regime was ideal. This article instead points out that the Trump administration has chosen to take a step back from progress, rather than a step toward repairing human inequality and unequal access to education, both fundamental human rights set out by the United Nations. Thus, the Trump Administration’s repeal of pro-affirmative action policies is more consequential than many realize. Now, it is up to students, administrators, and faculty to signal their stance on this issue, and, as Trump’s term in office nears its end, it is up to voters to decide if they want more of the same under the next administration, or if they want change.
 Nevertheless, the voters of Michigan came together to out-law affirmative action in the state a few years after the Supreme Court’s ruling.
 29% of Harvard admits are legacies. Recent available data shows 93% of legacies are White. 14.6% of Harvard admits are Black.
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