Doomed to Fail

Jeff Sessions’ reactionary attack on affirmative action won’t succeed.

Abigail Noel Fisher
Attorney Bert Rein, left, speaks to the media while standing with plaintiff AbigailFisher after the Supreme Court heard arguments in her case on Oct. 10, 2012, in Washington.

Mark Wilson/Getty Images

The New York Times reported on Wednesday that Jeff Sessions’ Department of Justice plans to refight the last culture war: affirmative action. According to the Times, a DOJ document lays out a plan for “investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.”

This news came just days after the Department of Justice filed a gratuitous brief arguing that federal law does not prohibit discrimination based on sexual orientation, demonstrating once again that President Donald Trump and Sessions are as hostile to social justice as their worst detractors feared.

After immediate and severe condemnation of the plan outlined in the Times report, the DOJ now claims that job listings seeking lawyers to oppose affirmative action were merely put out in response to a complaint by Asian Americans claiming race discrimination in university admissions. Veteran DOJ civil rights lawyers, however, doubt this is true.

The reactionary Trump is now clearly rehashing a wedge issue from the era of the Trump Shuttle. There’s no legitimate role for the administration in this tired conflict. Although the DOJ may intimidate some schools into scaling back or dropping lawful affirmative action plans, it can’t actually force universities to eliminate affirmative action. It can only encourage racial antagonism and perhaps use affirmative action as a political distraction in the 2018 elections and beyond.

Affirmative action has been argued, analyzed, and litigated repeatedly for more than 40 years. The Supreme Court has consistently held that affirmative action is lawful under appropriate conditions. In the latest controversy, the 2016 case Fisher v. University of Texas, the court reaffirmed its earlier holdings that universities may consider race as part of holistic evaluations of individual applicants, provided these considerations were necessary to achieve a diverse student body.

Accordingly, universities must first consider race-neutral means of achieving sufficient diversity—like the Texas 10 percent plan at issue in Fisher II—before using race-based affirmative action. But it also held that what counts as “sufficient” diversity had to be left up to the individual university.  Justice Anthony Kennedy wrote: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

Justice Samuel Alito complained in dissent that the “imprecise interest” in diversity “is designed to insulate UT’s program from meaningful judicial review.” That’s an exaggeration, although the vague nature of “diversity” does make it hard to create a precise rule. But the only alternative to such deference is micromanaging college admissions from the bench, which courts have wisely declined to do. To explain why, it’s worth delving into the details of college admissions. A lot of the opposition to affirmative action is based on the complaint that universities consider race when they should look only at merit. But this assumes that we all agree on what counts as merit. We don’t. Opponents of affirmative action typically point to black or Latino students with lower grades and test scores than rejected white applicants. But grades and standardized test scores are an incomplete and imprecise measure of merit. No one—including the people who give the grades and write the tests—thinks they should be the only considerations.

Moreover, grades aren’t comparable between schools, so admissions officers also have to consider the difficulty of classes, the competitiveness of schools, and the extent of grade inflation. Meanwhile, standardized test scores reflect well-documented racial and socio-economic biases. There’s no formula for how to account for all of this—so even looking at grades and test scores alone involves an inherently subjective and holistic evaluation. Lawyers and courts can’t tell a university how to do this.

Grades and tests aren’t the only considerations. Admissions priorities differ dramatically from one school to another. The most prestigious private universities aspire to have a nationally—and increasingly internationally—representative class and might favor applicants from under-represented geographic areas. State schools may prefer in-state residents. Schools with strong sports programs give extra consideration to athletes. Some universities prefer applicants interested in under-subscribed disciplines, say, the humanities as opposed to computer science. Some schools favor the children of alumni; others don’t. Unfortunately, some may even base admissions decisions on financial donations and connections—this may be embarrassing to the schools, but it’s not discriminatory. Again, there can be no one legal standard for evaluating these factors.

Because all these considerations can have a racial impact, what looks like a “racial  preference” can be a way to offset the effects of other admissions priorities that disfavor black, Hispanic, and Native American applicants. Moreover, some factors, such as social disadvantage, unusual life experiences, family wealth, and experience with prejudice are racially correlated and hard to disentangle from race itself. For instance, if a university considers one applicant’s struggles with sex discrimination, anti-gay bias, religious bigotry, or animosity based on disability, shouldn’t it also be able to consider another applicant’s experience with racism? Or is that “race discrimination”? The courts have wisely avoided answering these questions by deferring to universities on the details of admissions.

Indeed, that’s part of the reason the law allows universities to consider race and why Kennedy recognized in Fisher II that only educators familiar with the university in question were competent to determine what type and how much diversity is necessary. So, any DOJ investigation would have to look at whether universities are considering race—whatever exactly that means—whether they have made good-faith efforts to explore race-neutral alternative methods of achieving racial diversity and whether they are secretly trying to achieve “more” racial diversity than they themselves believe they need. Good luck “investigating” that: It’s hard enough describing it.

What about those Asian American applicants who claim Harvard discriminated against them? From one perspective, their claims don’t really challenge affirmative action—they’re straightforward race discrimination claims. For instance, some point to a study that shows Asian American applicants must score 140 points higher on the SATs than white applicants to have the same chance of admission to private colleges. Affirmative action designed to ensure a critical mass of underrepresented groups doesn’t require or justify a preference for well-represented white students over Asian students. Still, a gap in average test scores doesn’t prove discrimination because universities consider lots of other factors. If white students are more likely to play prestigious sports, show an interest in undersubscribed disciplines, be children of alumni, or even have parents who donate generously to the university, these nonracial factors might explain any discrepancies.

This is all just to say that affirmative action jurisprudence has run its course, and there isn’t much the DOJ can do about it. Kennedy once worried that affirmative action might worsen race relations by provoking the resentment of whites. In response he developed what Yale Law School professor Reva Siegel calls an “anti-balkanization principle” in affirmative action: By requiring it to be limited and inconspicuous, Kennedy hoped to retain the benefits of diversity while minimizing the resentment of those applicants that don’t benefit from it.

To some extent, Kennedy’s jurisprudence has achieved its goal—despite the unprecedented nastiness of the last presidential election, it was the first in decades in which affirmative action was not a major issue. The DOJ’s affirmative action intervention threatens to undo Kennedy’s legacy and whip up racial resentment while offering little if any benefit to applicants frustrated with university admissions. It’s fair to assume that the real goal here is to fuel the hostility that some downwardly mobile whites feel toward racial minorities and toward the “cultural elite” that selective universities have come to symbolize. Although the effect of affirmative action on whites is trivial, it may distract attention from Trump’s failure to address the real causes of economic immobility, such as the disinvestment in public higher education and the rising costs of higher education generally.

Trump’s pointless attack on affirmative action undermines the civil rights agenda the DOJ is charged with advancing. Instead, it encourages racial antagonism—America’s most enduring and volatile social menace—at a moment when the nation can least afford it.