The Trump administration on July 3 rescinded a number of Obama-era guidance documents that outlined how colleges and universities can consider race as a factor in diversifying their campuses, a move ACE President Ted Mitchell said sent “precisely the wrong message to institutions that are committed to following four decades of Supreme Court precedent.”
The “Dear Colleague” letter reverses seven Obama administration policy guidelines pertaining to elementary, secondary, and postsecondary education, which the Trump administration believes “advocate policy preferences and positions beyond the requirements of the Constitution.”
The Departments of Justice and Education in 2011 released two guidance documents detailing the flexibility the Supreme Court has provided to colleges and universities to promote diversity on campus. That guidance, informed by Supreme Court decisions, described how institutions may appropriately take race into account in admissions, pipeline programs, recruitment, and support programs such as mentoring and tutoring as efforts to achieve diversity.
The Obama administration elaborated on the issue in 2013 after the Supreme Court’s decision in Fisher v. The University of Texas (Fisher I), and again in 2016 after the high court reheard the Fisher case.
The Trump administration’s decision this week returns the government’s official stance to the race-neutral policies of the George W. Bush era, issued in 2008.
Peter McDonough, vice president and general counsel at ACE, told The Washington Post that he doubted colleges and universities would change their admission policies based solely on announcement. He pointed out that administrative guidance does not carry the legal weight of court rulings or congressional laws. But, he added, the action could have a chilling effect on colleges as they review their admission methods.
“The message—but not the law—could be that if you take race into account or ethnicity into account as one of the several factors in your review process, you’re going to be challenged.”
As a number of news outlets reported, the retirement of Justice Anthony Kennedy at the end of this month will leave the Supreme Court without its swing vote on diversity in admissions policies. These policies have now been in effect for four decades: This summer marks the 40th anniversary of the Supreme Court’s first decision in this arena, Bakke v. University of California.
“Colleges and universities that consider race and ethnicity as one factor in a holistic admissions review are committed to following the law of the land,” Ted Mitchell said. “And make no mistake, this is the law of the land. Today’s announcement does not change that.”