MICHAEL McGOUGH: Did Trump just roll back affirmative action? Yes and (mostly) no

By MICHAEL McGOUGH
Guest Columnist

(TNS) The Trump administration this week rescinded Obama-era guidance to school districts and colleges and universities about how they could take race into account. Was this a rollback of affirmative action?

Yes and no, but mostly no. The administration’s withdrawal of these documents, joint products of the Education and Justice departments, doesn’t alter civil rights law nor does it repeal the Supreme Court decisions the Obama documents cited to justify some consideration of race in college admissions and pupil assignments in public schools.

At the same time, rescinding these documents sends a clear message that this administration frowns on policies that take race into account even when they are deemed legal under Supreme Court rulings.

In his announcement Tuesday, Attorney General Jeff Sessions said the Trump administration was rescinding 24 guidance documents, including several dealing with race and education. The most important documents to be revoked were two guidance letters originally issued in 2011, one dealing with race and colleges, the other addressing elementary and secondary schools.

The Obama administration’s guidance parsed court decisions that have allowed school districts and colleges to take race into account without violating the 14th Amendment’s Equal Protection Clause. But the documents left no doubt that the two departments thought such policies can play a useful role in achieving “diverse learning environments.” And in construing Supreme Court decisions on racial preferences, including a 2007 case involving the Seattle public schools that was widely regarded as a defeat for racial preferences, the Obama administration chose to accentuate the positive.

More than that, the guidance for colleges provided tips about how institutions that adopted race-conscious policies could prepare themselves for possible legal challenges; for example, by maintaining documents that describe “your compelling interest” in racial diversity and listing race-neutral policies that “you considered and rejected.”

The guidance for colleges, which was modified in 2015, did not mention that some states, such as California with Proposition 209, have adopted policies prohibiting “preferential treatment” on the basis of race by state universities, or that the Supreme Court ruled in 2014 that such restrictions don’t violate the U.S. Constitution. (The departments did respond to the 2014 decision by sending a letter to educational institutions saying that the decision left intact previous rulings allowing the use of race “absent any restrictions in state law.” This letter also was among the “guidance documents” Sessions said would be rescinded.)

It’s not surprising that an administration opposed to racial preferences in education would want to withdraw this guidance and repost on a government website a statement by the George W. Bush administration that encourages “race-neutral methods” to assign students to elementary and secondary schools. Elections have consequences.

But the administration can’t change the underlying law, as advocates of race-conscious admissions policies were quick to point out. Ted Mitchell, president of the American Council on Education, told Politico: “Colleges and universities that consider race and ethnicity as one factor in a holistic admissions review are committed to following the law of the land. And make no mistake; this is the law of the land. Today’s announcement does not change that.”

Even so, some supporters of race-conscious policies worry that the change in guidance will discourage educational institutions from taking race into account even when it is legal to do so. The subtext of the Obama guidance statements was: “We have your back.”

The Trump administration wants to send a different message: that it disapproves of what most people mean when they talk about “affirmative action” (a term that also can refer to less controversial policies such as outreach by university admissions departments to schools with large minority populations). That will fortify the conviction of many Trump critics that the president is indifferent, if not hostile, to racial minorities. But the change of policy will please many of his most fervent supporters.

Michael McGough is the Los Angeles Times’ senior editorial writer, based in Washington.

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Posted by Tribune News Services

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