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As I tried to explain in a blog post
(https://louisproyect.org/2018/06/17/harvard-university-bias-against-asian-americans-affirmative-action-and-life-itself/),
the reports about Harvard passing over applications by Asian-American
students because of "personality" deficits was a smokescreen for the
all-out attack on affirmative action discussed below. It indicates how
off-base Walter Benn Michaels and Adolph Reed have been about
affirmative action serving the needs of the ruling class to create a
Black and Latino elite. Affirmative action is absolutely necessary both
in the Ivy League and in many private industry sectors that channel
Blacks and Latinos into low-paying jobs.
---
NY Times, July 34, 2018
Trump Officials Reverse Obama’s Policy on Affirmative Action in Schools
By Erica L. Green, Matt Apuzzo and Katie Benner
WASHINGTON — The Trump administration said Tuesday that it was
abandoning Obama administration policies that called on universities to
consider race as a factor in diversifying their campuses, signaling that
the administration will champion race-blind admissions standards.
In a joint letter, the Education and Justice Departments announced that
they had rescinded seven Obama-era policy guidelines on affirmative
action, which, the departments said, “advocate policy preferences and
positions beyond the requirements of the Constitution.”
“The executive branch cannot circumvent Congress or the courts by
creating guidance that goes beyond the law and — in some instances —
stays on the books for decades,” said Devin M. O’Malley, a Justice
Department spokesman.
Striking a softer tone, Education Secretary Betsy DeVos wrote in a
separate statement: “The Supreme Court has determined what affirmative
action policies are constitutional, and the court’s written decisions
are the best guide for navigating this complex issue. Schools should
continue to offer equal opportunities for all students while abiding by
the law.”
The Trump administration’s moves come with affirmative action at a
crossroads. Hard-liners in the Justice and Education Departments are
moving against any use of race as a measurement of diversity in
education. And the retirement of Justice Anthony M. Kennedy at the end
of this month will leave the Supreme Court without its swing vote on
affirmative action while allowing President Trump to nominate a justice
opposed to policies that for decades have tried to integrate elite
educational institutions.
A highly anticipated case is pitting Harvard against Asian-American
students who say one of the nation’s most prestigious institutions has
systematically excluded some Asian-American applicants to maintain slots
for students of other races. That case is clearly aimed at the Supreme
Court.
“The whole issue of using race in education is being looked at with a
new eye in light of the fact that it’s not just white students being
discriminated against, but Asians and others as well,” said Roger Clegg,
the president and general counsel of the conservative Center for Equal
Opportunity. “As the demographics of the country change, it becomes more
and more problematic.”
Democrats and civil rights organizations denounced the administration’s
decisions. Representative Nancy Pelosi of California, the House
Democratic leader, said the “rollback of vital affirmative action
guidance offends our nation’s values” and called it “yet another clear
Trump administration attack on communities of color.”
Guidance documents like those rescinded on Tuesday do not have the force
of law, but they amount to the official view of the federal government.
School officials who keep their race-conscious admissions policies
intact would do so knowing that they could face a Justice Department
investigation or lawsuit, or lose funding from the Education Department.
The Obama administration believed that students benefited from being
surrounded by diverse classmates, so in 2011, the administration offered
schools a potential road map to establishing affirmative action policies
and race-based considerations that could withstand legal scrutiny from
an increasingly skeptical Supreme Court.
In a pair of policy guidance documents issued in 2011, the Obama
Education and Justice Departments informed elementary and secondary
schools and college campuses of “the compelling interests” established
by the Supreme Court to achieve diversity. 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.”
But Trump Justice Department officials identified those documents as
particularly problematic and full of “hypotheticals” intended to allow
schools to skirt the law.
The Trump administration’s decision returned the government’s policies
to the George W. Bush era. The administration did not formally reissue
the Bush-era guidance but in recent days did repost a Bush
administration affirmative action policy document online. That document
states, “The Department of Education strongly encourages the use of
race-neutral methods for assigning students to elementary and secondary
schools.” For several years, that document had been replaced by a note
declaring that the policy had been withdrawn.
The Education Department had last reaffirmed its position on affirmative
action in schools in 2016 after a Supreme Court ruling said schools
could consider race as one factor among many. In that case, Fisher v.
University of Texas at Austin, a white woman claimed she was denied
admission because of her race.
“It remains an enduring challenge to our nation’s education system to
reconcile the pursuit of diversity with the constitutional promise of
equal treatment and dignity,” Justice Kennedy wrote for the 4-to-3 majority.
Some colleges, such as Duke and Bucknell universities, said they would
wait to see how the Education Department proceeds in issuing new
guidance. Other colleges said they would proceed with diversifying their
campuses as the Supreme Court intended.
Melodie Jackson, a Harvard spokeswoman, said the university would
“continue to vigorously defend its right, and that of all colleges and
universities, to consider race as one factor among many in college
admissions, which has been upheld by the Supreme Court for more than 40
years.”
A spokeswoman for the University of Michigan, which won a major Supreme
Court case in 2003, suggested that the flagship university would like
more freedom to consider race, not less. But it is already constrained
by state law. After the case, Michigan voters enacted a constitutional
ban on race-conscious college admissions policies.
“We believe the U.S. Supreme Court got it right in 2003 when it affirmed
our law school’s approach at the time, which allowed consideration of
race as one of many factors in the admissions process,” said Kim
Broekhuizen, the Michigan spokeswoman. “We still believe that.”
Attorney General Jeff Sessions has indicated that he will take a tough
line against such views. Federal prosecutors will investigate and sue
universities over discriminatory admissions policies, he said.
But a senior Justice Department official denied that these decisions
were rolling back protections for minorities. He said they were instead
hewing the department closer to the letter of the law. In the
departments’ letter, officials wrote that “the protections from
discrimination on the basis of race remain in place.”
“The departments are firmly committed to vigorously enforcing these
protections on behalf of all students,” the letter said.
Anurima Bhargava, who headed civil rights enforcement in schools for the
Justice Department under President Barack Obama and helped write that
administration’s guidance, said the withdrawal of the guidelines was
timed for brief filings in the Harvard litigation, due at the end of the
month.
“This is a wholly political attack,” Ms. Bhargava said. “And our schools
are the place where our communities come together, so our schools have
to continue to promote diversity and address segregation, as the U.S.
Constitution demands.”
Catherine Lhamon, who served as the Education Department’s head of civil
rights under Mr. Obama, called the departments’ move confusing.
“There’s no reason to rethink or reconsider this, as the Supreme Court
is the highest court in the land and has spoken on this issue,” Ms.
Lhamon said.
On Friday, the Education Department began laying the groundwork for the
shift, when it restored on its civil rights website the Bush-era
guidance. Conservative advocacy groups saw that as promising. Mr. Clegg,
of the Center for Equal Opportunity, said that preserving the Obama-era
guidance would be akin to “the F.B.I. issuing a document on how you can
engage in racial profiling in a way where you won’t get caught.”
Ms. DeVos has seemed hesitant to wade in on the fate of affirmative
action policies, which date back to a 57-year-old executive order by
President John F. Kennedy, who recognized systemic and discriminatory
disadvantages for women and minorities. The Education Department did not
partake in the Justice Department’s formal interest in Harvard’s litigation.
“I think this has been a question before the courts and the courts have
opined,” Ms. DeVos told The Associated Press.
But Ms. DeVos’s new head of civil rights, Kenneth L. Marcus, may
disagree. A vocal opponent of affirmative action, Mr. Marcus was
confirmed last month on a party-line Senate vote, and it was Mr. Marcus
who signed Tuesday’s letter.
Under Mr. Marcus’s leadership, the Louis D. Brandeis Center, a human
rights organization that champions Jewish causes, filed an amicus brief
in 2012, the first time the Supreme Court heard Fisher v. University of
Texas at Austin. In the brief, the organization argued that “race
conscious admission standards are unfair to individuals, and unhealthy
for society at large.”
The organization argued that Asian-American students were particularly
victimized by race “quotas” that were once used to exclude Jewish people.
As the implications for affirmative action for college admissions play
out in court, it is unclear what the decision holds for elementary and
secondary schools. New York City is embroiled in a debate about whether
to change its entrance standard — currently a single test — for its most
prestigious high schools to allow for more black and Latino students.
Anemona Hartocollis contributed reporting from New York.
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