This article was originally published in VICE US.
On Tuesday, the New York Times revealed an internal Department of Justice document suggesting the feds might start suing colleges that take race into account when weighing applicants. The note was a call for lawyers who might be interested in pursuing such cases, though DOJ officials have since insisted they were actually just looking into a single college that allegedly discriminated against Asian American applicants. But the document's revelation, coupled with a subsequent report in the Washington Post, raises the question of whether the United States government is about to go to war with affirmative action.
Such a crackdown would certainly be in keeping with the conservative agenda Attorney General Jeff Sessions brought to the department—one that has loosened oversight on local police departments and has worked to restore some of the most draconian aspects of the war on drugs.
It would also be a total Trump move to invigorate his identity-politics-despising base and distract from recent policy failures. Like many of the president's other initiatives, an assault on affirmative action might not hold up under judicial scrutiny given that the Supreme Court decided just last year that the University of Texas was allowed to use race as one of several factors in weighing applicants.
But to find out what it would look like if the DOJ actually did start targeting schools that take race into consideration, I called Sigal Alon, author of Race, Class, and Affirmative Action and an authority on the subject at the University of Tel Aviv. Here's what we talked about.
VICE: What would it mean if Donald Trump or Jeff Sessions wanted to make America's colleges white again, in keeping with their alt right following? What could they actually do?
If we step back for a second, the frustration toward affirmative action is fueled by several socioeconomic and academic trends that have shaped the lives of Americans over the past three decades. So among the economic trends are the rising of inequality and declining socioeconomic mobility.
Meanwhile, the higher education system has expanded, but the competition in admissions became serious. If you add the cost of college education and decline of financial aid, what you see is that the level of socioeconomic diversity at elite institutions has been declining steadily since the 70s. So some groups are feeling left behind. You can say that their frustration with affirmative action is coming from the same forces that brought up Trump. This is what his base wants.
Of course, it's easier to abolish affirmative action than to change the tax code or pass the health bill. It's a diversion.
To step backward for a moment, what exactly are we talking about when we talk about affirmative action in 2017? Is it a public policy or a voluntary initiative that some institutions engage in?
In the United States, it's a voluntary policy. There is now law or quota or mandate that forces the institution to give some preferences to some groups. It started in the 60s as part of the civil rights movement [when] several elite institutions noticed their students bodies were completely white and from the East Coast—and decided to give special treatment to blacks. And in the 90s, during a wave of increased immigration from Latin America, they started giving some preferences to Hispanic students, as well.
So does this happen at every college, or just those that decided they wanted to participate?
In general, you need affirmative action only at selective, elite institutions of higher education. Because the majority of colleges and universities in the United States and elsewhere admit almost everyone—or let's say 80 percent of the applicants. So when you open admission to that many people, you don't need affirmative action, because you get diversity anyway. Only where the pipeline is very narrow and the competition is very steep is where you don't have natural diversity, because the affluent and well-educated have more of a chance to get preparation in high school and therefore an advantage in getting in. We're talking about a very small number of institutions that practices affirmative action. So we may wonder why it's such a big debate when it's such a small policy.
Is there any uniformity in how affirmative action is practiced?
So admissions are holistic. That means admissions consider other criteria besides grades and test scores. They look at extracurricular stuff, like volunteering, and your essays and your circumstances. And in that process, which as you may guess is not transparent, they say that they take into consideration the race and the ethnicity of the applicant. So we don't know the weight that gets. But you can see from the outcome that they do take this into account, because in places where affirmative action was banned like the University of California and in Texas, there was a sharp decline in minority students.
When affirmative action was implemented, did we we see an uptick in minority applicants to colleges? And are we likely to see fewer people of color apply if that's taken away?
Yes, yes, yes. Again, we see this in states that abolish affirmative action. It's not only the number of minority students that decline but the number of minorities in the applicant pool. So it's tough. When you have affirmative action, they know their chances are higher, but it's also about a welcoming environment. Otherwise, there might be one black student in a class, and nobody wants to study in such a situation.
I know you're not a lawyer, but what's your sense of how this might play given the Supreme Court has repeatedly said some consideration of race is kosher?
It's very difficult to know what the Supreme Court would decide given the recent personnel changes. But even before, it's a very divisive topic. One judge could change the ruling. And the Supreme Court has already made it more difficult for institutions to implement affirmative action. They want some more accountability. So an institution cannot just say they gave admission to a minority student because they want diversity. That's not enough. The institution has to bring evidence that it tried every other option available that is race-neutral to increase racial and ethnic diversity, like implement various programs, before they started using affirmative action. The court sees the benefit of diversity but would prefer that people achieve that with race-neutral means. Of course, that's quite impossible. And that's a very important point to keep in mind. But the institution has to prove they tried.
So the University of Texas did a great job demonstrating they had these programs, which is why the court granted them the option to continue with Affirmative Action. There will be another institution that is less diligent in designing race-neutral admissions policies before they do racial preferences. I don't know what the court decision will be then.
Will college admissions staff immediately change their policies in anticipation of lawsuits?
I tell my students: "Affirmative action is a band-aid, and we need open-heart surgery." So affirmative action is a really small but effective policy. This is why the amount of attention it gets is so puzzling. There are already seven lawsuits in the pipeline right now—the pace is rising all the time. So I'm sure institutions are already very diligent about the court scrutiny. I don't think they will change anything right now if they haven't done it so far. It's very difficult to predict what will happen politically in the United States, but I think we have to see it as a part of a class war. And it's easier to target affirmative action as a scapegoat than to make changes in the distribution of wealth and political power.
Sociologically speaking, could a nod from the administration like this have a trickle-down effect that changes not just college admissions but hiring, too?
The affirmative action debate is so divisive that I don't really see people changing their minds. Either they're against it, or they're for it. I don't think it will have an additional effect. Eventually, even if the Justice Department pursues and sues institutions, it will arrive in the hands of the Supreme Court justices.
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