Last Updated July 5 at 7:54 a.m. ET
By Jaweed Kaleem
The Trump administration on Tuesday rescinded Obama-era guidelines encouraging the use of race to determine admission to educational institutions, instead favoring a race-neutral policy that critics see as a move against affirmative action.
The government returned to guidelines used during the George W. Bush administration and rejected Obama administration guidelines to schools and colleges that included taking a potential student's race under consideration as a way to increase diversity.
The changes do not outlaw affirmative action, which the Supreme Court has upheld several times, most recently in 2016.
Opponents and proponents of affirmative action said Tuesday's move sent the strongest message yet that the Trump administration could be ready to fight the policy in court or investigate institutions it views as relying too much on affirmative action.
"This is the clearest sign we've had about where this administration stands," said Catherine E. Lhamon, assistant Education secretary for civil rights under Obama and current chair of the U.S. Commission on Civil Rights.
"The Supreme Court has been consistent over decades in its rulings on lawful use of race in affirmative action, and the guidance the Trump administration rescinds today offered nothing more than a clear and practical statement of the law and how to comply with it," Lhamon said. "Taking away that guidance undermines the steps toward equity school communities have long been taking."
Edward Blum, who leads the anti-affirmative-action group Students for Fair Admissions, cheered the decision.
Blum, who orchestrated a lawsuit against such policies at the University of Texas that made it to the Supreme Court but ultimately failed two years ago, said he welcomed "any governmental actions that will eliminate racial classifications and preferences in college admissions."
The change in policy was among 24 federal guidelines that the Trump administration announced Tuesday had been voided as part of an ongoing review. Others that were removed included those focusing on the rights of refugees and people granted asylum to work and federal protections against discrimination based on national origin.
In a statement, Atty. Gen. Jeff Sessions said his department was eliminating guidelines from previous administrations that imposed "new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website." Seven of the documents removed were responses to court rulings allowing affirmative action.
Justice Department spokesman Devin O'Malley said that despite withdrawing the guidelines, the administration "remains committed to enforcing the law and protecting all Americans from all forms of illegal race-based discrimination."
The move comes amid controversies over affirmative action. Supporters of affirmative action point to studies that say diverse schools lead to better outcomes for white and nonwhite students. Many opponents say that students should be judged for admission on merit alone and that affirmative action discriminates against them for factors such as race that they cannot control.
The pending retirement of Supreme Court Justice Anthony Kennedy has left civil rights groups nervous about the future of several key issues, including the use of race in university admissions. Kennedy wrote the 4-3 majority opinion upholding the University of Texas admissions program's support of affirmative action in a 2016 case in which a white woman said she was not admitted partly because the school accepted members of minority groups as part of a program.
Trump is expected to nominate a conservative judge to replace Kennedy, who was the court's swing vote on some issues, though he reliably voted with its conservative wing.
A lawsuit is making its way through a Massachusetts federal court over whether Harvard's admissions process discriminates against Asian Americans.
The Justice Department has not intervened in that case, also filed by Blum, or filed a friend-of-the-court brief. But it has opened a separate investigation into similar allegations against Harvard that a coalition of Asian American groups filed in 2015. Other Ivy League universities have also come under attack for their admissions numbers when it comes to Asian Americans.
The issue has also hit elite public schools in New York City, where debate has grown over a plan to increase black and Latino enrollment in the schools that currently require a single test for admission and enroll Asian Americans at significantly higher numbers than their share of the local population.
It's unclear whether the Trump administration's decision will lead more schools and universities to stop considering race when admitting students.
Secretary of Education Betsy DeVos said in an interview last year with the Associated Press that "the courts have opined" on affirmative action. She added that "the bottom line here is that we want an environment where all students have ... an equal opportunity to get a great education."
Meanwhile, the Department of Education's new assistant secretary for civil rights, Kenneth L. Marcus, has opposed affirmative action. Since the Senate confirmed him for the position last month, civil rights groups have complained about statements Marcus has made on the issue.
Marcus, who is the founder of the Louis D. Brandeis Center, a conservative organization that focuses on Jewish issues, filed a friend-of-the-court brief in 2012 in the Supreme Court saying that "race-conscious admission standards are unfair to individuals, and unhealthy for society at large." That year was the first time the court heard a case over the University of Texas admissions program.
Vanita Gupta, president and chief executive officer of the Leadership Conference on Civil and Human Rights, was among the representatives of dozens of nonprofit organizations that opposed the Marcus appointment.
"In furtherance of its agenda of intolerance and discrimination, the Trump administration is once again failing in its responsibility for the well-being of all students by tossing aside diversity and inclusion -- core American values," Gupta said.
"The reported actions come as the Department of Justice appears ready to tee up a challenge to lawful race-conscious admissions or affirmative action programs," she said. "Although today's action does not change any laws, it sends a clear signal that Atty. Gen. Sessions and Secretary DeVos are advancing a vision of America that is particularly hostile to students of color, but that will impact all students."
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