The End of Affirmative Action?
WASHINGTON, D.C. – President Trump’s Justice Department has set its sights on affirmative action and will begin to shift its resources toward “investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants.” This is another effort to “Make America Great Again” and reverse the Obama administration’s policies on a range of issues, including criminal justice, policing, racial discrimination and voting rights.
In a leaked internal memo from the Justice Department’s civil rights division, the Department announced that it was seeking lawyers willing to work on an investigation involving race-based policies in universities. A Justice Department official said August 2, 2017, that the job posting does not necessarily signal a policy shift toward attacking race-conscious policies in admissions programs.
Affirmative action is a proactive approach to remedy past societal discrimination by removing prejudices against recruiting and promoting minorities, and other under-represented groups of the society. In Brown v. Board of Education, the U.S. Supreme Court fundamentally changed education in America by declaring that the discriminatory practice of “segregation” as “inherently unequal.” This landmark decision opened the door for a more culturally diverse learning environment through desegregation and affirmative action.
The courts have limited the use of race and ethnicity in college admissions, and the legal foundation for these practices have remained largely unchanged since the late 1970s, when the use of rigid quotas were forbidden. In the 2003 case, Grutter v. Bollinger the U.S. Supreme Court affirms that racial diversity is a compelling interest for universities, but permits affirmative action only as one factor among many in a holistic admissions process. In 2013, Fisher v. University of Texas reinforces the Grutter decision, sustaining limited use of affirmative action and emphasizing the responsibility of judges. Later in 2014, the U.S. Supreme Court upheld in Schuette v. Coalition a Michigan constitutional amendment banning the use of race-based preferences in the admissions decisions of public universities.
In the Michigan case, Justice Anthony Kennedy wrote in the court’s main opinion, stating: “There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters… This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” Justice Kennedy added: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”
Most recently, in the 2016 case of Fisher v. University of Texas at Austin, U.S. Supreme Court upheld the use of race as one factor in evaluating who is admitted to college in a 4-3 decision that upheld an affirmative action policy at the University of Texas.
Clearly the law still allows for affirmative action in its limited scope. Moreover, public opinion supports affirmative action and it’s good for society.  Diversity matters in education, as well as in employment. Racism, sexism, xenophobia, and homophobia still continue to exist in the United States; Trump used this as currency in order to win the presidential election.  The Justice Department’s move, along with all the other rollbacks of civil rights witnessed in the past few months, make it impossible to deny this continuing hate and bias towards certain minorities. Now, more than ever, affirmative action is needed to combat discriminatory policies and lingering effects of the America’s dark past.

The experienced New York City sexual harassment and discrimination attorneys at the Derek Smith Law Group, PLLC, work diligently to protect the civil rights of our clients in both the workplace and in Universities. If you feel like you have been discriminated against on the basis of your race, give our talented discrimination attorneys a call at (800) 807-2209 for your free consultation.

About Derek Smith

Attorney Derek T. Smith is an experienced sexual harassment & discrimination law litigator who has particular experience in the areas of workplace discrimination, sexual harassment, wrongful termination, civil rights litigation, employment law and civil litigation.

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