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Excerpted From: Vinay Harpalani, “Trumping” Affirmative Action, 66 Villanova Law Review: Tolle Lege 1 (2021) (98 Footnotes) (Full Document)


VinayHarpalaniAffirmative action in university admissions has long been under attack, but the Trump administration took this siege to a new level. Ironically, during his Republican primary campaign in 2015, Trump himself twice stated that he was “fine with affirmative action.” But then-President Trump's nominees to the federal judiciary--particularly his U.S. Supreme Court appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett the courts far to the right. Former President Trump also made numerous appointments to the federal appeals courts. His remaking of the federal judiciary threatens to eliminate race-conscious university admissions altogether.

But the Trump administration did not stop there. The Civil Rights Division of the Department of Justice (DOJ) worked vigorously to eliminate affirmative action. The DOJ began investigating race-conscious admissions policies at two of the most elite universities in the U.S.: Harvard and Yale. During these investigations, the DOJ threatened to sue Harvard for delays in the production of documents. In August 2020, the DOJ declared Yale's race-conscious admissions policy illegal and suggested that it might file a lawsuit. And after Yale refused to stop considering race in its 2020-21 admissions cycle, the DOJ did file suit.

The Trump DOJ's actions stood in stark contrast with the Obama administration, which supported affirmative action and created legal guidance for universities to defend their race-conscious admissions policies guidance the Trump DOJ rescinded. President Joe Biden's administration will likely return to the Obama-era stance. Nevertheless, the Trump DOJ's actions will have a lasting impact. Moreover, these actions illuminate not only the legal strategies to defeat affirmative action but also the social and political dynamics at play in the debate.

After President Trump took office, his administration did not take long to begin attacking affirmative action. In August 2017, just seven months into his presidency, the DOJ launched an investigation into Harvard's race-conscious admissions policies. Harvard's admissions policies were already under challenge from Students for Fair Admissions (SFFA), an anti-affirmative action organization. SFFA contends that affirmative action, legacy preferences for children of alumni, and other evaluations used by admissions reviewers all discriminate against Asian-American applicants. Former President Trump's DOJ largely echoed this position. The focus on Asian-American applicants adds another dimension to the discourse around affirmative action, as Asian Americans have historically faced racial discrimination in various sectors, including admissions.

Both the Harvard and Yale lawsuits involve claims under Title VI of the Civil Rights Act of 1964 rather than the Fourteenth Amendment's Equal Protection Clause. Title VI can unequivocally reach private universities: it prohibits race discrimination by all education institutions that receive federal funding. Although the Supreme Court has not ruled directly on a Title VI case involving race-conscious university admissions, it strongly suggested that the criteria for evaluating racial classifications under Title VI are the same as those for the Equal Protection Clause. Racial classifications brought under the Equal Protection Clause must pass strict scrutiny: they must fulfill a compelling state interest and be narrowly tailored to that interest. The Supreme Court's legal framework for evaluating the constitutionality of race-conscious admissions policies under the Equal Protection Clause also guides the legality of affirmative action under Title VI.

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The Trump DOJ's legal challenges have also been part of a broader political strategy to attack the use of race in admissions. The DOJ investigations forced universities to reveal secretive and potentially embarrassing information about their admissions processes. Even if these investigations do not lead directly to elimination of race-conscious policies, they can negatively affect public perceptions of such policies. In this way, former-President Trump's DOJ has damaged affirmative action in the long run.

President Joe Biden's DOJ can undo some of the damage to affirmative action that Trump's DOJ inflicted. Given President Biden's prior support for affirmative action and his gratitude especially to African-American voters, his DOJ is likely to take steps to defend affirmative action. Biden has selected Kristen Clarke and Vanita Gupta, leaders of two of the most prominent American civil organizations, to fill high-level positions in his DOJ. The Biden administration can also reinstate Obama-era guidance for universities to make sure their race-conscious admissions policies are constitutional under Supreme Court precedent. It can file amicus briefs in favor of universities that face lawsuits. And of course, the Biden administration can drop the DOJ investigations of Harvard and Yale.

Nevertheless, SFFA continues its efforts to dismantle affirmative action. It moved to intervene in the Yale lawsuit, but the U.S. District Court for the District of Connecticut denied this motion. In the Harvard litigation, SFFA will file a petition for a writ of certiorari to the Supreme Court, which is due by mid-April 2021. If the Supreme Court takes the case, it would likely strike down race-conscious admissions policies, given its current ideological composition.

Alternatively, the Court might deny certiorari. Chief Justice John Roberts in particular is concerned with the Court's legitimacy, and revisiting affirmative action could give the impression the Court is a political body rather than a legitimate, impartial government branch. Less than five years have passed since the Court decided Fisher II. In contrast, twenty-five years passed between the Court's rulings in Bakke and Grutter, and another decade passed before Fisher I. The Justices might think it prudent to wait for a circuit split before hearing another affirmative action case. This would give the Supreme Court additional justification for revisiting the issue, and the Court could consolidate two or more cases when doing so. SFFA's cases against the University of North Carolina at Chapel Hill and University of Texas at Austin are proceeding. The Court will have plenty of opportunities to consider the affirmative action again.

When it does, the outcome will probably not be good for colleges using race-conscious admissions polices. Universities will need to find other ways to attain diversity. Although Donald Trump is no longer president, it is quite possible that affirmative action will be “trumped” in the near future.

Vinay Harpalani, Associate Professor of Law and Henry Weihofen Professor at the University of New Mexico School of Law. J.D., 2009, New York University School of Law; Ph.D., 2005, University of Pennsylvania.

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