Justice Department to investigate university affirmative action programs

The Department of Justice will investigate the affirmative action admission policies of several universities, according to a document unearthed by the New York Times.

Admittedly, this is a target-rich environment.  The Supreme Court has previously ruled that affirmative action is legal as long as it's not the sole criterion used in admissions.  But this is a gigantic loophole that schools routinely use to justify a virtual quota system.


The internal memo seeks lawyers in the department's Civil Rights Division who are interested in working on a new project on "investigations and possible litigation related to intentional race-based discrimination in college and university admissions," the Times reported.

The U.S. Supreme Court has ruled that universities may use affirmative action admissions policies, which are intended to give minority applicants an edge in getting into college. The court has rejected racial quotas but said race could be used as one factor among many in evaluating an applicant.

Critics of affirmative action say that in some cases it goes too far in discriminating against white and Asian-American applicants.

The Times said the Justice Department document does not explicitly say whom it considers at risk because of affirmative action admissions policies. But the Times reported that supporters and critics of the project said it clearly targeted admissions programs that seek to help black and Latino students.

A Justice Department spokesman told Reuters the department would not comment on personnel matters.

The Times said the document suggests the project will be run out of a part of the Civil Right Division where its political appointees work, rather than the Educational Opportunities Section, which is devoted to handling cases involving universities and is run by career civil servants.

In a recent Supreme Court decision involving affirmative action programs at the University of Texas, the court did not give schools carte blanche to discriminate:

The decision, Fisher v. University of Texas, No. 14-981, concerned an unusual program and contained a warning to other universities that not all affirmative action programs will pass constitutional muster. But the ruling's basic message was that admissions officials may continue to consider race as one factor among many in ensuring a diverse student body.

The decision, by a 4-to-3 vote, was unexpected. Justice Anthony M. Kennedy, the author of the majority opinion, has long been skeptical of race-sensitive programs and had never before voted to uphold an affirmative action plan. He dissented in the last major affirmative action case.

The Fisher decision raises questions about what exactly universities can use to determine eligibility for admissions.  The loophole left open by Kennedy includes determinations based on extracurricular activities, test scores, even work in the community.  But it is the contention of critics that none of those factors is as important as race, and schools are getting away with blatant discrimination by muddying the waters regarding their admissions policies.

The Justice Department will have to cut through the BS by schools and get to the heart of the matter: why are so many qualified whites and Asians denied admission to some of the top schools in the country?  Another dodge used by schools is the "diversity" argument.  The Supreme Court ruled in Grutter v. Bollinger that universities can factor in the diversity of their faculty and student body in determining admissions.  This was an open invitation to use quotas, which many schools did.  Again, the schools piously claimed that other factors were also used to determine admissions. 

These are the legal standards that the Justice Department is going to have to investigate to determine if schools are using quotas.  There will probably be court challenges in trying to deny the Justice Department access to records that would prove or disprove discrimination, so expect a long, slogging investigation drawn out over years.