Last week, The New York Times reported that the Department of Justice is preparing to investigate universities over their affirmative action policies.
The news ricocheted across the Internet, in part because it seemed like a singular representation of President Trump's messaging around race: playing into fears that minorities are taking away a limited resource—in this case, college admissions—from whites.
The DOJ later insisted that it did not issue any "directive, memorandum, initiative, or policy related to university admissions in general," but that's cold comfort to legal observers concerned about efforts to roll back affirmative action under a department led by Jeff Sessions, a former Alabama senator who was denied a federal judgeship in 1986 over accusations of racism. The news is especially troubling to advocates of diversity in education, who worry that the DOJ could end up discouraging universities from using race as a factor in their admissions policies.
And it's particularly relevant to North Carolina, where a lawsuit has been filed against UNC-Chapel Hill by the same conservative legal defense fund, the Project on Fair Representation, behind a landmark affirmative action case that made it to the Supreme Court case last year, Fisher v. University of Texas.
In that case, Abigail Fisher sued the University of Texas at Austin for denying her admission to the school, arguing that the school's admissions policy discriminated against her because she was white. In a 4–3 decision, the court rejected Fisher's claim, ruling that universities can have race-conscious admissions policies as long as they help achieve a diverse student body.
"These are challenges that are led by conservative groups that are really just trying to end any consideration of race in educational policymaking," says Liliana M. Garces, an associate professor of higher education at UT-Austin. "So you have the weight of this White House involved in this way, it's not unreasonable for educators to see it as an intimidation tactic to try to bypass that Supreme Court precedent."
While Fisher was a victory for affirmative action proponents, the decision was also narrow. UT-Austin offers admission to students who graduate in the top 10 percent of their high school class. About 80 percent of students at UT-Austin are granted admission through the top 10 program, says Erika Wilson, a professor at the UNC School of Law. For the rest, race was one of a number of factors that could give an applicant a boost.
Justice Anthony Kennedy's opinion upheld the program, but he also noted that a university "must tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest." Which is to say, an admissions policy that passes muster now might not do so in the future.
Like Fisher, the UNC lawsuit—filed in 2014 by the Project on Fair Representation on behalf of the nonprofit Students for Fair Admissions—argues that the school's admission policies are unconstitutional. UNC includes race among more than forty critiera used to evaluate applicants, according to the lawsuit, including grades, test scores, and the application essay.
While UNC says it does not use race as a "tie-breaker," the lawsuit argues that UNC-Chapel Hill's "admissions decisions are attributable to a sizable racial preference for underrepresented minorities."
The suit, Students for Fair Admissions v. University of North Carolina, argues that UNC-Chapel Hill's race-conscious admissions policies are harmful to Asian-American and white students. (A similar suit, filed against Harvard University by the Project on Fair Representation, focuses exclusively on Asian Americans.) According to the lawsuit, if UNC were to adopt the top 10 program utilized by UT-Austin, its percentage of nonwhite and underrepresented students would increase from 15 percent to 16 percent.
The unnamed applicant at the center of the UNC case, who was denied entry to UNC's 2014 class, is white, with a 4.48 GPA and an SAT score of 2180, and was a member of the varsity cross-country team, according the lawsuit. Yet the student didn't make the cut.
The lawsuit's architect—and the founder of Project on Fair Representation—is Edward Blum, a conservative legal activist who Mother Jones called "the brains behind the effort to get the Supreme Court to rethink civil rights." Blum, a visiting fellow at the Koch-funded American Enterprise Institute, is not an attorney; he is a self-described "legal yenta" who uses the courts to challenge race-based policies and protections such as affirmative action and voting rights, recruiting plaintiffs and then connecting them with lawyers.
To recruit plaintiffs for the UNC cases, Blum created a website, uncnotfair.org, which features a photo of an Asian student on its homepage along with the question, "Were you denied admission to the University of North Carolina? It may be because you're the wrong race." (Blum did not respond to the INDY's request for comment.)
After being put on hold to await the outcome of Fisher, the UNC case is currently before the U.S. District Court. It hasn't yet gone to trial. The DOJ hasn't weighed in on the case, and it's unclear what impact the department's reported plans to investigate universities over affirmative action could have on UNC.
Wilson believes such an approach could dissuade universities from pursuing admissions policies that take race into account—especially schools in conservative states like Texas or North Carolina. And the fights over affirmative action will keep coming, Wilson predicts, until people are "honest about the history of racial exclusion" and opportunity gaps in schools.
"Most supporters of affirmative action would say, 'We'd like to see the day where we don't have to rely on affirmative action,'" she says. "But that day is not going to come until we're honest about the state of our schools, the history of our schools, and how that contributes to what we see today. People only oppose affirmative action if they presume that the baseline is neutral or fair. People like me understand that the baseline is neither neutral nor fair."