affirmative action

Federal law has long permitted the use of affirmative action in a variety of contexts. In the realm of higher education, colleges and universities may, under limited circumstances, use race-conscious measures to promote diversity on campus. Although the federal courts have, over the years, significantly narrowed the circumstances under which institutions may implement affirmative action programs, institutions should be afforded the flexibility to continue such programs if, in their academic judgment, such diversity is essential to their educational mission.

About

Institutions of higher education are deeply committed to maintaining a diverse student background rich in a variety of experiences, perspectives, and interests. For some institutions, affirmative action programs are a critical component to achieving this important educational goal.
 

History

The use of affirmative action in higher education has a long and contentious history. Despite decades of debate and litigation, the Supreme Court has, in some cases, upheld the limited use of race to promote diversity at public colleges and universities. The Court’s most recent pronouncement on this issue came in 2016 in Fisher v. University of Texas at Austin where the Court approved a race-conscious admissions program at the University of Texas at Austin.

Generally, the constitutionality of governmental policies based on race are evaluated under the equal protection clause of the Constitution. Under judicial precedent, laws that contain classifications based on race are subject to strict scrutiny. Such laws will survive strict scrutiny only if the government can show that they: (1) further a compelling governmental interest; and (2) are narrowly tailored to meet that interest. The Supreme Court has ruled that diversity in higher education serves a compelling governmental interest, and therefore meets the first prong of this test.  However, it remains extremely difficult for public institutions of higher education to demonstrate that their affirmative action programs are sufficiently narrowly tailored to win judicial approval under the second prong of the test.

Although private colleges and universities are not subject to the same constitutional constraints as public institutions, affirmative action programs at private schools are just as susceptible to legal challenge on statutory grounds. Under Title VI of the Civil Rights Act, private colleges and universities that receive federal funding are prohibited from discriminating on the basis of race, color, or national origin. Because the federal courts have ruled that Title VI forbids the same activities that are prohibited under the Constitution, affirmative action programs at private institutions must therefore meet the same legal standards that apply to public schools.
 

Recent Developments

Under the Obama Administration, the Departments of Education and Justice jointly issued multiple guidance documents explaining proactive steps that colleges and universities could voluntarily take to increase diversity at their institutions. The Trump Administration, however, rescinded those guidance documents and reinstated guidance that had previously been in effect during the Bush Administration.

The Bush-era guidance emphasizes that “if a postsecondary institution seeks to use racial classifications in admissions, it will bear the burden of providing sufficient detail about its process to enable [the Office for Civil Rights at the Department of Education] to determine whether the institution is complying with Title VI.”

In addition to rescinding the Obama-era guidance, the Trump Administration has sent other signals that it may seek to limit affirmative action programs at institutions of higher education. For example, the Department of Justice (DOJ) is currently investigating a race discrimination claim filed against Harvard University and has become involved in a private lawsuit filed against the school.

The DOJ investigation came in response to a complaint submitted in 2015 by the Asian-American Coalition for Education, which accused Harvard and several other Ivy League schools of race discrimination in their admissions programs. The complaint, filed with both the Education and Justice Departments, alleged that these institutions had violated Title VI by discriminating against Asian-American students.

At the time, the Department of Education administratively closed the complaint because there was a similar case pending in federal court. Initially, DOJ did not take action on the complaint, but the Trump Administration is now pursuing the case. Although DOJ’s affirmative action investigation is currently limited to Harvard, the agency could initiate Title VI investigations against other private institutions in the future.

Meanwhile, a separate group, Students for Fair Admissions, has brought several affirmative action suits in federal court. One such suit involves a claim that Harvard’s admissions program violates Title VI. According to the complaint in the case, Harvard’s holistic race-conscious admissions plan allows schools to hide race discrimination against specific groups, including Asian Americans. The same group has also filed a statutory and constitutional challenge against the University of North Carolina, and has sued the Department of Education for its failure to release records related to a similar investigation at Princeton.

More recently, the retirement of Justice Kennedy from the Supreme Court of the United States has raised questions as to whether, if a more conservative Justice takes his place, the Court will eventually rule that affirmative action programs are unconstitutional. Given Justice Kennedy’s role as the pivotal vote in affirmative action cases, these questions appear well founded. Even if a reconfigured Court did maintain current constitutional standards with respect to affirmative action, it will remain very difficult for institutions to craft programs that are sufficiently narrow in scope to pass constitutional muster.

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