On Tuesday night, the New York Times reported that the Trump administration is preparing to use the civil rights division of the Justice Department to attack universities with affirmative action programs. According to an internal Justice Department job posting, officials are trying to recruit career attorneys to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” While the memo did not make explicit reference to affirmative action, civil rights advocates interpreted it to mean that President Donald Trump and Attorney General Jeff Sessions are concerned about race-conscious policies that allegedly place white students at an unfair disadvantage in the college admissions process.
On Wednesday, the Justice Department aggressively pushed back on that characterization, releasing a statement to the Wall Street Journal saying that, actually, the job posting reported by the Times had nothing to do with defending white students against discrimination. Rather, it was prompted by a complaint submitted to the DOJ by a coalition of 64 Asian American groups alleging anti-Asian bias in the admissions process at Harvard.
“This Department of Justice has not received or issued any directive, memorandum, initiative, or policy related to university admissions in general,” a DOJ spokeswoman told the Journal in her statement. “The Department of Justice is committed to protecting all Americans from all forms of illegal race-based discrimination.”
At first glance, the statement seemed to indicate that the Times—along with all the civil rights advocates who’d expressed outrage after reading the Times’ story—had screwed up. By taking the least charitable view possible of the DOJ job posting, they’d mistakenly assumed that the discrimination probe had to be about protecting whites, when in fact it was about protecting Asian Americans.
The reality is likely more complicated. If the Trump administration wants to take on race-conscious admissions policies designed to get more black and Latino students into college, championing the grievances of Asian American students who feel discriminated against by those policies is one way to do that. A complaint like the one submitted by the 64 Asian American groups could very well function as a smokescreen for the Trump DOJ—a way of laundering what amounts to an assault on affirmative action by dressing it up as a pro-minority gesture.
“We reject such attempts to use Asian American students as a wedge to escalate the fears of those who believe that affirmative action creates an unfair advantage against white or Asian students,” said Brenda Shum, director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, in an email. “This rhetoric is useful to distract the public from understanding that race is one of many considerations in admissions decisions.”
Experts I spoke to Thursday noted several reasons to be skeptical about the DOJ’s official explanation for the job posting. One is that the posting referred to “investigations,” plural. Another is that it would be extremely unusual to mount an entire initiative in the civil rights division’s so-called front office in response to a single complaint—especially one that, according to the Times, was filed in May 2015 in connection with a matter that is already playing out in federal court. “It doesn’t make sense that two years after this complaint was filed, there’s a front office position to look at [it]—especially when there’s a federal case on the same issue that’s been pending since November 2014,” said Anurima Bhargava, who ran the education opportunities section of the civil rights division during the Obama administration.
It is strange in and of itself that this initiative is being run out of the front office, a managerial layer of the civil rights division that is run by Trump administration appointees, not career attorneys from the civil rights division who specialize in education policy. According to the Washington Post, career staffers in the division’s education section “refused to work on the project out of concerns it was contrary to the office’s long-running approach to civil rights in education opportunities.” Faced with those objections, the political leadership in the front office “decided to run the effort themselves.”
Bill Yeomans, who served in the civil rights division for 26 years before retiring during the George W. Bush administration, told me that by making the initiative separate from the education section, the Trump administration is essentially setting up a “shadow Civil Rights Division.” He explained:
There’s a structure in place at the Justice Department. There are sections responsible for engaging in litigation in a variety of subject areas in which the Civil Rights Division enforces the law. The regular procedure is for litigation to be conducted by career people in those sections and for big decisions to work their up through a career bureaucracy. Only in some instances are those decisions supposed to get signed off on by political appointees. What this is doing, on the other hand, is taking the whole operation into the political structure, taking it away from the career attorneys who are the experts in enforcing civil rights law and handing the litigation over to people who have been brought in largely because of their ideological views.
Arguably, it’s preferable that the Trump administration is putting political appointees in charge of this work rather than trying to force it on career people who don’t believe in it. But as Emily Loeb, a former acting chief of staff in the civil rights division, told me in an email, “If … career attorneys with education expertise are refusing to work on this, it’s because they believe the initiative is not supported by the law or they believe it is unethical. And in that case, no one in the Civil Rights Division should be doing this.”
That doesn’t mean the front office won’t find some career attorneys to sign onto the effort, or that the Trump DOJ won’t eventually do what the Bush administration did and hire more people who are politically and ideologically conservative and thus more likely to support its priorities. Regardless, putting political staffers in charge of this effort represents a workaround to the central problem Republican administrations have historically faced when taking over the DOJ. As a rule, the civil rights division attracts the kinds of lawyers who support a “traditional” view of civil rights that prioritizes the needs of vulnerable groups and does not mesh with GOP policy goals. As Yeomans told me, “You will find that 99 percent of the Civil Rights Division employees are not interested in joining this effort.”
According to multiple civil rights experts I spoke to this week, if the DOJ does pursue litigation against a university due to its race-conscious admissions policy, it will be a first. While past Republican administrations have come out against affirmative action by weighing in on court cases filed by private plaintiffs, Trump and Sessions would be breaking new ground by actively and unilaterally initiating a lawsuit.
“Typically the DOJ has participated in higher education affirmative action cases by filing an amicus brief or a statement of interest,” said Shum. “This represents a new strategy that is more aggressive.”
Shum continued: “It’s an unusual approach, and it’s important to not just distinguish it from what happened under the most recent administration—this is out of step with what the department has done even prior to that time.”
Yeomans echoed the idea that a lawsuit filed by the DOJ would represent a significant escalation of the assault on affirmative action. “The Department of Justice traditionally has more resources and a lot more credibility with the courts than private plaintiffs,” he said. “It’s an enormous thing.”