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Trump administration moves to rescind Obama-era guidance on race in admissions

| Tuesday, July 3, 2018, 6:33 p.m.
Education Secretary Betsy DeVos testifies at a House Committee on Education and the Workforce, n Capitol Hill in Washington.
Jacquelyn Martin | AP
Education Secretary Betsy DeVos testifies at a House Committee on Education and the Workforce, n Capitol Hill in Washington.

WASHINGTON — The Trump administration is moving to rescind Obama-era guidance to colleges and universities on how they can use race in admissions decisions to promote diversity, according to an administration official.

The action, expected Tuesday afternoon, is likely to signal a shift toward advocacy of race-neutral admissions. The Supreme Court has upheld race-conscious admission practices as recently as 2016, but affirmative action in higher education remains a contentious issue.

In 2011 and 2016, the Obama administration's Justice and Education departments jointly spelled out for colleges their view of the law on the voluntary use of race in admissions.

The 2011 statement said the departments "recognize the compelling interest that postsecondary institutions have in obtaining the benefits that flow from achieving a diverse student body." It went on to assert that schools have flexibility "to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet this compelling interest."

The Obama-era documents replaced a 2008 letter on the subject from the Bush administration. Now it appears that the Trump administration is about to assert its own views. A Justice Department spokesman said an announcement was imminent.

Opponents of affirmative action said they were heartened.

"It's a very good development," said Roger Clegg, president of the Center for Equal Opportunity, based in Falls Church, Va. He said it was appropriate for the administration to ditch policies that had encouraged schools to weigh race and ethnicity in deciding where students would be assigned or admitted. "Students should be able to go to a school without regard to their skin color or what country their ancestors came from," he said.

But former Obama officials criticized the move.

"Once again, the Trump administration works to create confusion where none exists, needlessly muddying civil rights practices in schools," said Catherine E. Lhamon, assistant education secretary for civil rights under Obama. "The Supreme Court has been consistent over decades in its rulings on lawful use of race in affirmative action and the guidance the Trump administration rescinds today offered nothing more than a clear and practical statement of the law and how to comply with it. Taking away that guidance undermines the steps toward equity school communities have long been taking."

The policy shift comes at a pivotal moment in the long-running affirmative action debate. The retirement of Supreme Court Justice Anthony Kennedy, who had been a swing vote in key rulings, will allow President Trump to name a successor who could tilt the outcome of future cases.

In addition, Harvard University's use of race in admissions has come under scrutiny in a federal lawsuit that alleges the school has discriminated against Asian Americans. The Justice Department is conducting its own civil rights investigation of Harvard admissions.

The university denies wrongdoing and says its methods — weighing race and ethnicity as one factor among many in a review of an applicant's background and credentials — conform to decades of settled law.

Not all colleges use race in admissions. Some states, including California and Florida, prohibit public universities from considering race and ethnicity.

In recent years, admissions deans also have put major emphasis on social, geographic and economic diversity. Some want more first-generation college students. Others are seeking to draw more women into science and engineering programs, or more men into humanities.

But for many selective schools, public and private, race remains a factor as they seek to build incoming classes representative of a range of racial and ethnic backgrounds. These schools say racial diversity has a crucial role to play in the education of their students. That is why higher education leaders have argued to the Supreme Court that its precedents on affirmative action should be upheld.

It remains to be seen what impact the Trump administration's action will have on college practices.

Peter McDonough, vice president and general counsel of the American Council on Education, which represents college and university presidents, said he doubted schools would change their admission policies based solely on the announcement. He noted that administrative guidance does not carry the legal weight of court rulings or statutes enacted by Congress.

"It isn't shocking that guidance would be withdrawn," he said. "It happens all the time across administrative units."

But McDonough said the administration's 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," he said.

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