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Justice Department’s Assault on Affirmative Action Signals Aggressive Roll Back on Civil Rights

News Analysis By Brenda Shum –


PHOTO: Reuters

UCLA Campus, Photo: Reuters

( – The Justice Department’s recent decision to assemble a team of attorneys to investigate and challenge race-based admissions signals another step forward in this Administration’s aggressive campaign to roll back civil rights protections for some of our most historically disadvantaged students, including transgender youth, women and girls, and students of color.

This move must be viewed in the context of other evidence that this Justice Department is departing from its core mission of protecting the rights of all citizens including those related to voting, employment, and policing. This newest assault on affirmative action in higher education ignores the law, a growing body of social science research on the educational benefits of integrated learning environments, and our entrenched history of segregated education.

First, let us be clear:  just last year the Supreme Court validated the constitutionality of race-based admissions policies when applied in a holistic and narrowly-tailored way. In Fisher v. University of Texas at Austin, our highest court reaffirmed that a university may institute race-conscious admissions plans to achieve the educational benefits of diversity consistent with the law. Challenging the legitimacy of race-conscious admissions plans turns settled principles of constitutional and civil rights law on their head.

Affirmative action helps remedy some of the persistent inequities rooted in decades of discrimination. Even so, many question whether it is still necessary today. One need look no further than to college campuses across this country to find evidence that we have yet to come to terms with our troubling legacy of racial discrimination.

From the University of Mississippi, to Princeton, to American University in DC, students are sharing their experiences of racial isolation and distrust. Now more than ever, integrated campuses are essential to breaking down racial barriers. Learning with people from other backgrounds allows students to appreciate a range of experiences, a skill that is essential to their ability to succeed in an increasingly multicultural society. More importantly, a growing body of research shows that the benefits of diversity flows to all students.

Affirmative action has been one of the most effective strategies to expand opportunities for students of color. While socioeconomic diversity is important, empirical data confirms that race-conscious admissions policies remain necessary to reverse decades of racial privilege on our college campuses.

Some argue that affirmative action creates an unfair advantage for unqualified applicants of color to the detriment of more qualified white and Asian applicants. This is simply untrue. There are many low-income and working class Asian Americans and Pacific Islanders who benefit from and support affirmative action policies. In addition, affirmative action expands opportunities for many students who are educated in segregated and inequitable K-12 schools.

Race-neutral policies alone do not produce the level of diversity necessary to achieve a positive campus climate.  Research indicates that increasing the number of students of color on campus facilitates cross-racial interaction and participation, and that a negative campus climate compromises the learning and development of all students.

Negative perceptions and stereotypes can be reduced through repeated and meaningful interactions with peers from different groups.  Institutions need to attend to the historical legacies of exclusion and other factors that may shape the climate on their campuses. But in order to do so, colleges must continue to have access to affirmative action as an essential strategy to establish a diverse campus.

Opponents of affirmative action claim these policies constitute racial preferences that undermine merit-based admission decisions.  This ignores ample evidence that cultural and racial bias in testing and legacy admissions deny many students equal opportunity to higher education.

More importantly, this rhetoric escalates the fears and insecurities of white students and uses Asian Americans as a wedge to erode support for such policies.  We must not allow ourselves to be distracted by these efforts. Instead, we should continue to expand opportunities for all students while addressing the persistent equity gaps for low-income students and students of color.

(Brenda Shum is director of the Educational Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law where she oversees litigation designed to guarantee that all students receive a quality education in public schools and institutions of higher learning.)

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