By Leland Ware
Multiple media outlets report that the Trump administration is preparing to investigate university admissions programs that allegedly discriminate against white applicants. It is highly unlikely that the Justice Department would be able to find any such programs. The Supreme Court has affirmed the validity of affirmative action in every case that has come before it. In the first case, Board of Regents v. Bakke, the Supreme Court approved the constitutional validity of affirmative action with the caveat that numerical quotas could not be used to promote student body diversity.
Decades later in Grutter v. Bollinger the Supreme Court affirmed the validity of affirmative action admissions at the University of Michigan’s law school. In three more recent cases involving the University of Texas, the Court reaffirmed the validity of policies in which race was considered to enhance student body diversity. The bottom line is that race can be one among several considerations when minorities are underrepresented in a university’s student body.
The Supreme Court has made clear in case after case that race can be a factor, but it cannot be the predominant or motivating factor. The Justice Department is not likely to find any schools in which race is the primary factor in admissions decisions. There have been too many cases, too many academic journal articles, and too many professional conferences to assume colleges and universities do not know the rules.
Individuals involved in the process know how affirmative action works; what is permitted and what is not. Most schools use a “holistic” approach to admissions, which involves a “full file” review of individual applications. Admissions decisions are not a mechanical, by-the-numbers process. That approach was struck down in Gratz v. Bollinger. Admissions Committees consider a number of factors including standardized test scores, grade point averages and academic recommendations. There are several other factors that come into play. These include, among other considerations, musical talent, athletic ability, legacies and the sons and daughters of wealthy donors.
The widely held belief that grades and test scores are the only considerations is not accurate. Most schools have a set of “automatic admits” for the students with the strongest academic records. At the other end are automatic denials for students with the weakest records. The vast majority of the students fall into the middle range. Their academic records indicate that they can succeed as students. The question is who among them should be selected for the limited number of seats that are available. That is where the softer, more subjective considerations come into play.
The irony of the claims of “reverse discrimination” is that no individual applicant can prove that he or she would have been admitted but for minority students who were admitted with lower grades and test scores. The white students who sued Michigan and Texas found there were other white applicants who were admitted with lower grades and test scores than theirs. Numbers do not tell me entire story. This is what Attorney General Sessions will learn when he moves beyond his unfounded assumptions. Sessions’ plans are merely pandering to those in Trump’s base. These are whites who believe that people like them have been passed over for a position or promotion in favor of a less-qualified minority. This is the sort of racial resentment that propelled Trump’s election.
Seventy years ago the Civil Rights Act of 1957 established the Civil Rights Division of the U.S. Department of Justice. It has the responsibility of upholding the civil and constitutional rights of all Americans, particularly those who are most vulnerable. Sessions’ plan to subvert the mission of the Civil Rights Division to appease angry white men is a sad commentary on the state of the nation.
Leland Ware is Louis L. Redding Professor of Law, University of Delaware.