The Department of Justice has not filed a single case to defend the Voting Rights Act during the Trump era. Other Republican administrations have mounted at least token defenses of the law, but Donald Trump’s DOJ has not found even one instance of voter discrimination or suppression that it is willing to bring to federal court. And it has all but stopped conducting investigations into biased policing and greatly reduced the number of investigations into hate crimes and disability rights cases.
What has the civil rights division at the Justice Department been doing all this time? What has commanded the attention of federal law enforcement in charge of policing racial discrimination? Apparently, it has been preoccupied with white kids who can’t get into Yale. The Department of Justice recently accused the university of civil rights violations over the school’s use of affirmative action in college admissions. According to the DOJ, a two-year investigation revealed that Yale systemically discriminated against white and Asian American applicants to the university.
If this accusation sounds familiar, it should. The DOJ’s claims against Yale are near carbon copies of allegations leveled by Students for Fair Admissions, a group led by the anti-affirmative-action activist Edward Blum against Harvard. SFFA’s lawsuit against Harvard also used Asian American students—who almost certainly are discriminated against—as a front for a legal action designed primarily to make it easier for mediocre white students to get into elite universities.
SFFA lost its lawsuit in front of US District Judge Allison D. Burroughs last fall. She ruled that Harvard’s admissions policy was squarely in line with constitutional principles, as established in Grutter v. Bollinger. That case, decided by the Supreme Court in 2003, requires affirmative action programs to be “narrowly tailored” in order to achieve the “compelling interest” of promoting diversity on college campuses. Burroughs ruled that Harvard’s use of race as one factor among many was in keeping with Supreme Court precedent. The case is now pending appeal.
The Department of Justice, which weighed in with an amicus brief in support of SFFA’s suit, offers no compelling evidence for how Yale’s admissions program differs from Harvard’s—or why it should fail the same legal test Harvard passed less than a year ago. Eric S. Dreiband, the assistant attorney general for civil rights, said, “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness and division,” which is a statement devoid of any relevant information about Yale’s facially legal admissions priorities.
In its letter to the school, the Justice Department ordered Yale “not to use race or national origin in its upcoming 2020-2021 undergraduate admissions cycle.” It’s an amazing commandment when you think about all the other things Yale is still allowed to consider, according to the DOJ. Yale can consider if an applicant is a legacy, a prince, or a celebrity. It can consider an applicant’s gender or sexual orientation. It can consider whether an applicant can paint, sing, or dunk. But Yale is being ordered to put its head in the sand and ignore whether an applicant has faced systemic racism. Yale can look at whether an applicant is from Manhattan, N.Y., or Manhattan, Kan., but it must ignore if the applicant’s ancestors are from San Juan, P.R., or Lagos, Nigeria.
The argument against affirmative action is never really about merit or fairness or any of the buzzwords conservatives use to mask their racism. It’s always about promoting the chances of white kids over everybody else.
The Justice Department gave Yale until August 27 to voluntarily comply with its directive. Yale already indicated it will not comply. Despite the lack of a valid legal argument, the Justice Department is likely to sue the school.
Of course, offering valid legal arguments is not ever the point when it comes to the Justice Department under Trump and Attorney General Bill Barr (or former AG Jeff Sessions, for that matter). They’re not trying to make a case; they’re simply trying to get a case in front of a Trump-appointed judge or an appellate court stacked with Trump judges. And if they lose in the lower courts, well, there’s always the Supreme Court.
I believe there have been enough votes on the Supreme Court to end affirmative action in college admissions since alleged attempted rapist Brett Kavanaugh ascended to that bench. I also believe that Justice Clarence Thomas, who dissented in part in Bollinger and has contempt of affirmative action because he thinks it made white people not take him seriously, will be able to keep himself alive on pure hatred until he is allowed to write the opinion ending its use. Conservatives don’t have a constitutional rule they want universities to follow in order to promote diversity on campus; they just want universities to stop promoting diversity on campus.
All Barr is trying to do is rush this case onto a court’s docket before Trump is (hopefully) kicked out of office in January. If it gets onto a court’s docket, it will likely be assigned a lawyer by the court even if Joe Biden wins in November and his Justice Department withdraws the complaint. At that point, Barr will have opened up another opportunity for some conservative judge to issue a sweeping ruling that would end affirmative action, throwing various university programs into disarray, and wait for the conservative-controlled Supreme Court to sort out the mess.
No matter who wins, Asian American students will lose. Asian Americans are the fastest-growing minority group in the country and have been for most of this century, but their representation at elite universities has not kept pace. It’s not because Black kids are taking up spots. It’s because many of the other factors that universities consider serve to disadvantage Asian American applicants. Geographic diversity favors white kids, school recommendation letters favor white kids, and most important, legacy status favors white kids. To use just one popular example, more than a third of those admitted to the Harvard Class of 2022 were legacies.
Trump’s Department of Justice isn’t trying to end affirmative action; it’s trying to keep Black children out of elite colleges and universities. It has no problem with affirmative action for middling white students.