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.
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