The Trump administration on July 3 rescinded a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.”