Trump’s Decision to Reverse Obama-Era Guidance on Affirmative Action Sparks Debate

On July 3, the Trump administration rescinded Obama-era guidelines regarding the use of affirmative action in college admissions, urging U.S. higher education leaders not to consider race in admissions decisions.

President Donald Trump’s directive comes on the heels of U.S. Supreme Court Justice Anthony Kennedy’s announcement of his retirement — a move that will create a vacancy likely to be filled by a more conservative judge who may have the opportunity to rule on matters concerning affirmative action. Specifically, a lawsuit against Harvard University alleging that the school discriminates against Asian American students in its decision who to admit is expected to go to trial in October. Should this case make its way to the Supreme Court, it would open the door for the possible elimination of race-conscious practices in the college admissions process.

Historically, the Supreme Court has largely ruled in favor of affirmative action. In the 1978 case Regents of the University of California v. Bakke, the justices ruled that race-conscious admissions policies did not violate the Constitution. This opinion was upheld in 2003 in Grutter v. Bollinger and subsequently in 2013 and 2016.

Despite the uproar over Trump’s announcement, the new guidelines do not have any direct effect on the law, leading many legal experts to debate how much weight they actually carry. Michael A. Olivas, a law professor at the University of Houston who specializes in higher education, has said that Trump’s announcement “is much ado about nothing because there has been no material change in the law… .” However, Neal H. Hutchens, a professor of higher education at the University of Mississippi, has suggested that the announcement could nonetheless influence colleges and universities’ decision-making regarding the consideration of race in admissions by sending a “strong signal … to be careful what you do.”

Many higher education experts and civil rights activists have expressed concern about the possibility of prohibiting affirmative action in higher education. Lily Eskelsen Garcia, president of the National Education Association, said in a statement that the practice “has proven to be one of the most effective ways to create diverse and inclusive classrooms.” The American Civil Liberties Union (ACLU), for its part, argued that the reversal of the Obama-era guidelines “is another attack by … President Trump on people of color.”

Proponents of affirmative action say it is necessary to increase educational opportunities for disadvantaged students and those who have traditionally been barred from higher education. The continued and severe underrepresentation of African American and Hispanic students at colleges and universities — especially at those with highly selective admissions — is evidence of the need to continue this practice, they argue.

There are some higher education leaders, though, that support the president’s decision, such as Yukong Zhao, president of the American Coalition for Education, who believes that Asian Americans have long been the victims of racial quotas.

On July 9, Trump announced his Supreme Court nominee, Judge Brett Kavanaugh, who has a track record of opposing affirmative action. Specifically, in 1999, he wrote an amicus brief on behalf of the Center for Equal Opportunity, a group that opposes the consideration of race in admissions decisions.