The Trump Administration Thinks Affirmative Action Goes “Beyond the Requirements” of the Law

The Trump administration Tuesday rescinded Obama-era guidance about affirmative action in higher education which stated that there is “compelling interest that post-secondary institutions have in obtaining the benefits that flow from achieving a diverse student body.”  The notice that the policy, released in both 2011 and 2016 by the Education and Justice Departments of the Obama Administration, had been rescinded inferred that the previous administration’s guidance “advocated for policy preferences and positions” that went “beyond the requirements of the Constitution, Title IV and Title VI.”

Attorney General Jeff Sessions, who announced 24 documents being rescinded by the Department of Justice in a statement, declared that his intention is to sue universities for their “discriminatory” admissions practices. Among the other education policies included in Tuesday’s announcement were “FAQs About the Protection of Limited English Proficiency (LEP) Individuals under Title IV of the Civil Rights Act of 1964 and Title VI Regulations, March, 1, 2001,” and “2013 Dear Colleague Letter on the Voluntary Use of Race to Achieve Diversity in Higher Education After Fisher v. University of Texas at Austin,” among others. 

“With this latest action, President Trump, Attorney General Sessions and Secretary DeVos are making it more difficult for colleges and universities to open up doors of opportunity to students and communities who have historically been left behind,” Senator Patty Murray said in a statement, “and more difficult for them to increase access and diversity in their classrooms, which is something we know helps all students succeed.”

With the departure of Supreme Court Justice Anthony Kennedy, the fate of affirmative action in education looks particularly dire. In the 2016 case Fisher v. University of Texas, Kennedy joined his liberal colleagues in the majority for a 4-3 decision which ruled that the University of Texas at Austin’s admissions process were not discriminatory towards white applicants and had survived the scrutiny required for race-based admission policies. Advocates have used that case, in which a white student claimed she was denied entry to the University based on her race, as evidence for the legality and Constitutional basis of affirmative action. 

Kennedy provided the key swing vote in that case—but all nominees on Trump’s short list of candidates have demonstrated a firm commitment to the same ideals now guiding the Justice Department. Now, as a major case that could be heard before the Supreme Court leaves the future of the policy nationwide uncertain, Kennedy’s retirement leaves the Court’s ideological makeup in question as well.

“In furtherance of its agenda of intolerance and discrimination, the Trump administration is once again failing in its responsibility for the wellbeing of all students by tossing aside diversity and inclusion—core American values,” Vanita Gupta, former U.S. chief civil rights prosecutor and current president and CEO of the Leadership Conference on Civil and Human Rights, said in a statement, adding that Session and DeVos were advancing a “vision of America that is particularly hostile to students of color.”

Almost two years ago, then-presidential nominee Donald Trump famously asked black voters: “What the hell do you have to lose?” This week’s announcement provides a shameful answer to his own question.


Rosalind Jones is a writer and global feminist thinker with a focus on international women's liberation. Her goal is to use her writing and language skills to elevate the voices of gender equality advocates in all corners of the world. She is an Occidental College graduate with a degree Diplomacy and World Affairs and a contributor to Ms.