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REUTERS / Kevin Lamarque
One person’s opportunity, the other’s discrimination
JUSTICE FOR ALL

The biggest threats against the future of affirmative action in the US

By Annabelle Timsit

The Trump administration announced Tuesday (July 3) that it will encourage US school superintendents and college presidents to discount race in their admissions decisions, according to the New York Times and other media outlets, thereby reversing Obama-era affirmative action guidelines.

The Obama guidelines, issued jointly by the Departments of Justice and Education in 2011 and 2016, laid out legal recommendations for elementary and secondary schools and college campuses on using affirmative action to “further their compelling interests in achieving diversity and avoiding racial isolation,” based on rulings by the Supreme Court.

Now the Trump administration plans to argue that the joint Obama-era documents actually go beyond Supreme Court precedent on the issue of affirmative action. The move is is likely to escalate the long-running national debate over the role that race should play in college admissions, an issue the Supreme Court has ruled on several times since the 1970s.

In addition to Trump’s announcement, affirmative action faces several other challenges on the national stage. Here are a few developments to watch in the months ahead:

The Harvard University lawsuit on behalf of Asian-American students

The move by the Trump administration comes as the Justice Department is investigating whether Harvard University is illegally discriminating against Asian-American students in its admissions process–a controversial move, given that the Obama administration had dismissed similar cases.

The suit, filed in 2014 by a group called Students for Fair Admissions, alleges that Harvard intentionally discriminates against Asian-American applicants by holding them to higher standards than non-Asian applicants, and by limiting the number of Asian students who are admitted. It is expected to go to trial in October, and is also expected to make its way to the Supreme Court.

If it goes on to the Supreme Court, a ruling in favor of Students for Fair Admissions could upend affirmative action policies at colleges and universities across the country. Many other Ivy League schools, from Princeton to Cornell, also have high numbers of Asian-American applicants but comparatively lower shared of Asian-Americans students.

Trump’s next nominee for the US Supreme Court

But what the Supreme Court will do then is anybody’s guess. In 2016, the justices upheld affirmative action in a 4-3 decision (pdf) in the case of Abigail Fisher vs. the University of Texas at Austin. But in his opinion, justice Anthony Kennedy said that universities must continue to review their affirmative-action policies to assess their positive and negative effects, leaving the door open for future legal challenges to the practice.

Now Kennedy has announced his retirement. It’s a blow to affirmative action supporters, since he was seen as the sole judge among the court’s current Republican appointees who was open to race-based affirmative-action plans for public colleges and universities. His Trump-nominated successor may take a different view of the practice.

It is in this context that Trump administration officials have announced a return to the race-blind admissions stance of the George W. Bush administration. The future of affirmative action in college admissions matters not just for young students and their parents, but for all of American society—as the issue is a barometer of the prevailing US attitudes toward how much American institutions at large owe minorities as a result of the country’s legacy of slavery, racism and discrimination.

As Kennedy wrote in his majority opinion in Fisher vs. University of Texas at Austin, while “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 … it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”