Jeff Sessions can try to stop affirmative action, but hell fail. Heres why.
Hinting at a new legal battle, the Trump administration is reportedly directing the Justice Department’s civil rights division to investigate and sue universities over affirmative-action admissions policies deemed to discriminate on racial grounds — “intentional race-based discrimination,” as an internal department memo put it. But as long as the current law remains, the Justice Department faces an uphill battle.
The department hopes to allege that by factoring race into college admissions decisions, universities are violating the civil rights of white and Asian applicants who are denied admission. But their case will be incredibly difficult to make. Affirmative action in college admissions uses race in quiet and indirect ways — treating race as one of several factors in a holistic review of applicants instead of the “predominant factor” — making claims of direct discrimination against individual applicants nearly impossible to prove.
This is no coincidence; in fact, it’s this very ambiguity that has historically kept affirmative-action programs safe in court. Programs have survived past constitutional challenges in part because they do not specify which individuals benefit from them and how much benefit those individuals receive.
In the landmark 1978 case Regents of the University of California v. Bakke before the Supreme Court, Justice Lewis Powell emphasized the value of holistic and individualized review out of concern for fairness to individual applicants. Setting aside seats for racial minorities was improper because it failed to “treat each applicant as an individual in the admissions process.” Instead, Powell allowed all students to bring “diverse” experiences or viewpoints into a classroom without specifying who benefited from racial preferences and by how much.
Bakke also made the use of race in admission decisions less explicitly numerical. A university could no longer seek a “simple ethnic diversity” in the form of a racial quota, and it had to consider racial or ethnic background as only one element in the selection process without allocating a specific weight to race. Thus, affirmative-action programs were set up to keep the racial elements of their consideration ambiguous going forward.
Just last June, the Supreme Court in Fisher v. University of Texas upheld the use of race in admissions decisions by the University of Texas at Austin. In describing UT-Austin’s admission program, Justice Anthony M. Kennedy emphasized that “race is but a ‘factor of a factor of a factor’ in the holistic-review calculus.” He added that “race, in this indirect fashion, considered with all of the other factors … can make a difference to whether an application is accepted or rejected,” thus allowing individualized consideration.
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