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Trump DOJ Looks Into Suing Universities for 'Discriminatory' Affirmative Action

By George Khoury, Esq. on August 02, 2017 | Last updated on March 21, 2019

National headlines are spreading like wildfire about the new Department of Justice policy shift to investigate and go after "discriminatory" affirmative action policies at universities. Critics are suggesting that the new policy is an overt attempt to protect white individuals from discriminatory affirmative action policies and institutions that go too far in exercising affirmative action. This is according to an unnamed U.S. government official cited by the Washington Post.

On its face, the policy seems to be neutral in regards to which race(s) it seeks to protect, but the unnamed source really puts that in question. The twist to this policy appears to be rather focused.

Affirmative Action After Fisher

According to the recent U.S. Supreme Court ruling in the Fisher v. University of Texas Austin, affirmative action policies are legal. Additionally, it was found that diversity is beneficial to the college experience, and therefore necessary for admissions departments to consider. SCOTUS found that affirmative action policies can survive strict scrutiny analysis.

In doing so, the Court affirmed that points based systems cannot award points for race or other protected categories, and school cannot have racial quotas. However, race, gender, national origin, and other characteristics can be used as part of the intangible considerations that admissions boards make.

What's Next?

According to the New York Times, the DOJ is currently seeking lawyers to assist with the investigation. The new lawyers will be tasked with looking into "possible litigation related to intentional race-based discrimination in college and university admissions." The Times suggests that the new legal team will operate out of the office where Trump's political appointees work, not in the Educational Opportunities Section.

How worried should university admissions departments be at this point? We'll likely find out soon as this story develops. For now, admissions departments can continue to take comfort in the words of Justice Anthony Kennedy: "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."

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