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The Trump administration's new war on affirmative action, explained

The Justice Department under the Trump administration is very concerned about racial discrimination on college campuses — at least when it’s happening in the admissions office and white and Asian students are among the victims.

The New York Times’s Charlie Savage reports on an internal memo from the Justice Department announcing a new priority: “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

Opponents of affirmative action have long argued that the programs, initially meant to remedy past discrimination, are themselves discriminatory. The Trump administration just signaled it’s going to be sympathetic to their complaints.

The memo seen by the Times didn’t specify which races the Justice Department thinks are being discriminated against. (A full day after the story was first published, a Justice Department spokeswoman told Buzzfeed’s Zoe Tillman that Savage was describing an internal posting relating to a single complaint about discrimination against Asian-American students in Harvard’s admissions.) While white students denied admission have historically brought most lawsuits against affirmative action, Asian-American students, have increasingly become a cause célèbre among affirmative action’s foes.

Conservatives have long embraced the argument that affirmative action is unconstitutional racial discrimination. But under Trump, any attempts to police affirmative action slide into a narrative that has animated his political career: White Americans are under threat, and the primary role of the federal government should be to defend them.

The Justice Department can’t kill affirmative action. But it can make colleges afraid to use it.

The Trump administration can’t dismantle affirmative action on its own. The Supreme Court has ruled several times, including in 2016 in the final decision in Fisher v. University of Texas, that affirmative action is constitutional and doesn’t discriminate against white applicants.

But lots of ways to carry out an affirmative action program aren’t constitutional. For example, colleges can’t set quotas by race. They can consider race as one factor in a “holistic review” of applicants. And for colleges to consider a prospective student’s race in a constitutional way, the Court ruled, it has to meet three tests.

These tests were laid out in the two decisions for Fisher v. Texas, a case concerning a white student not admitted to the University of Texas who argued that the university’s consideration of race in admissions meant she had been discriminated against.

But even at the time, affirmative action opponents saw the strict conditions for affirmative action programs as a silver lining of the loss, because they could be the basis of future lawsuits:

  • Universities have to give a "reasoned, principled explanation" for wanting a diverse student body.
  • Their affirmative action programs must be narrowly tailored, or specifically designed to accomplish a goal.
  • And the policies must withstand strict scrutiny, meaning colleges have to prove affirmative action was the only way to accomplish its diversity goals.

The Justice Department could also investigate whether colleges are meeting those requirements when they consider race in admissions. Even if those investigations find nothing, they’re time-consuming, expensive, and attention-getting — and can have a major effect on colleges’ policies.

The Obama administration helped spur huge changes to policies on sexual assault, for example, without filing lawsuits or imposing fines. Instead, the Education Department’s Office of Civil Rights signaled that it took colleges’ responsibility to deal with sexual assault seriously, and expected colleges to do the same. That stance led to mushrooming numbers of complaints about mishandled cases and helped spur a national effort to investigate assaults, support victims, and punish perpetrators.

Another example provides an even more direct parallel: Under President George W. Bush in 2008, the Education Department investigated whether Princeton University had discriminated against Asian applicants. In 2015, investigators decided that the university had not.

But Princeton’s victory was Pyrrhic. The investigation eventually led to the release of unflattering documents where admissions officers discussed the race of prospective students in stark terms. Students for Fair Admissions, the group that recruited Fisher to sue the University of Texas Austin, is now pushing for the release of the rest of the files from the Princeton investigations. Princeton, meanwhile, is arguing that releasing those records would damage its reputation and violate students’ privacy.

Investigations don’t have to reach negative conclusions or impose giant fines to impose a chilling effect.

It’s not just white students who can claim discrimination

The Justice Department memo was widely interpreted, including by the Times, as suggesting that the Trump administration will focus on discrimination against white students. Sending a signal that complaints against affirmative action will find a sympathetic ear could lead to an outpouring of complaints and investigations from white students rejected in the college admissions process, who have historically been the plaintiffs in lawsuits that seek to overturn affirmative action.

But lately, opponents of affirmative action have changed tactics. The lawsuits they see as the most promising challenges to considering race in college admissions aren’t on behalf of white students at all, but Asian-American ones.

Unlike black and Latino students, Asian-American students aren’t underrepresented at top colleges relative to their share of the population. But they are rejected at higher rates than white students. In California, where public colleges are forbidden to consider students’ race, the most selective colleges have a high share of Asian students.

If the Trump administration wants to dismantle affirmative action with nonwhite plaintiffs, it won’t be hard to find some.

Students for Fair Admissions sued Harvard in 2014, arguing that it had an unconstitutional quota for Asian students. (This is the case that Sarah Flores, the Justice Department spokeswoman, said the complaint was about.) The group filed a similar suit against the University of North Carolina. In May 2016, the Asian American Coalition for Education filed a civil rights complaint to the Department of Education’s Office for Civil Rights against Yale University, Dartmouth College, and Brown University.

Roger Clegg, the director of the Center for Equal Opportunity, an anti-affirmative action group, wrote in 2016 that the Harvard and North Carolina cases were the most promising for the group’s agenda.

And there are signs that the argument is breaking through: In his dissent in Fisher v. Texas, Supreme Court Justice Samuel Alito, who voted in Fisher’s favor, argued that the Court should have considered the university’s discrimination against Asian-American students as well as white ones.

So it’s possible that Asian students will end up benefiting from the Justice Department’s fight against affirmative action. But those gains are likely to be short-lived.

In a 2013 study, white adults in California were asked how they felt about considering grades and test scores more heavily in college admissions, rather than a holistic system that included more subjective criteria like “leadership.” Whites who were asked the question with no other background favored relying heavily on grades and test scores. But white people who were told that Asian students were overrepresented at the state’s universities changed their minds. One possible interpretation is they realized they were likely to gain from a holistic admissions system rather than lose.

Trump has a zero-sum worldview, and college admissions are a zero-sum game

The Justice Department memo was widely interpreted as signaling that white people are the real victims, in the administration’s eyes, of affirmative action. There’s good reason for that: Portraying the historically powerful majority — men, white people, Christians, native-born Americans, the police — as victims of minorities and “political correctness” has been core to Trump’s governance since the campaign.

One likely source of this rhetoric is Trump’s zero-sum worldview, where in order for one group to gain, someone else has to lose — a view he’s held since long before he entered politics. (Since many selective colleges refuse to expand their student bodies significantly, college admissions is often the ultimate zero-sum game.)

Trump’s speech declaring his candidacy warned American citizens that they were at risk of becoming the victims of criminal Mexican immigrants who were sneaking across the border.

His oft-repeated assurances that people will be able to say, “Merry Christmas!” again portrays Christians as the victims of atheists, agnostics, Jews, and Muslims (all of whom they outnumber).

His obsession with voter fraud echoes a false narrative that casts white voters as the victims of black and Hispanic voters voting illegally.

His Justice Department has expanded the ability of police to seize property from people who haven’t committed a crime. In a speech on Friday, he told police officers that the real problem in America is laws that prevent them from doing their job, and urged them not to be too careful with suspects’ safety when they are being arrested. Portraying affirmative action as a discriminatory policy isn’t just an old legal argument — it’s one that fits perfectly with Trump’s view of how things work.

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