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An internal document published by The New York Times on Tuesday shows the Trump administration could direct the Department of Justice to investigate and sue universities it believes are engaging in "intentional race-based discrimination."
The wording of the documents has been largely interpreted to mean President Trump wants the DOJ's civil rights division to go after universities with affirmative action policies that discriminate against white applicants. However, a spokesman for the Justice Department said the agency is only interested in investigating claims of discrimination against Asian applicants.
But what is affirmative action, anyway? The U.S. Commission on Civil Rights defined it in 1995 as measures that consider "race, national origin, sex, or disability, along with other criteria" to offer opportunities to groups that historically have been denied them.
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In other words, these are policies structured to help certain groups who have faced institutional racism, sexism, poverty, and other kinds of discrimination. There's not a universal set of guidelines, and there's no federal law requiring schools to use affirmative action, so colleges have the liberty to craft their own policies. In fact, eight states have banned affirmative action in one way or another.
Civil rights advocates condemned the possibility that the Justice Department could further marginalize the vulnerable communities that benefit from these policies.
"Affirmative action is rooted in our nation’s fundamental commitment to equality, a commitment this Administration woefully lacks and has expressed hostility towards," Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said in a statement.
But not everyone opposes the administration's initiative. Roger Clegg, who worked in the DOJ's civil rights division during the Reagan and Bush Sr. administrations, told The Times the efforts were "long overdue."
“The civil rights laws were deliberately written to protect everyone from discrimination, and it is frequently the case that not only are whites discriminated against now, but frequently Asian-Americans are as well,” Clegg, now president of the conservative Center for Equal Opportunity, said.
In order to clear the air about what affirmative action is, we will explain how it works and dispel the most common myths surrounding it.
MYTH: Affirmative action is about giving preferential treatment to people of color.
As we saw with Fisher v. University of Texas at Austin, some believe colleges prioritize minorities over white applicants. In 2008, Abigail Fisher alleged she was denied admission to UT-Austin because she is white, and that the school admitted less-qualified minority students. But, the school said it felt her academic record wasn't strong enough.
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She lost the case last summer when the U.S. Supreme Court upheld a ruling determining schools can consider race when admitting an incoming class. But that doesn't mean there aren't limitations to considering race in the application process.
"The Supreme Court’s decisions have limited the use of race in certain ways," Daria Roithmayr, a professor at the University of Southern California Gould School of Law who has written extensively about racial inequality in the U.S., told Refinery29. "For example, an applicant cannot be automatically awarded a certain number of admissions 'points' because she is a person of color."
The goal of these policies is to make the admission process an equal playing field for everyone, but being of a particular race or ethnicity doesn't guarantee anyone automatic placement.
Black and Latinx students are more likely to come from poverty-stricken neighborhoods where the majority of people are either underemployed or unemployed. They're also more likely to come from underfunded and segregated schools, where few of their classmates are headed to college.
And racial quotas are prohibited under the law.
MYTH: Affirmative action is only about race.
Race is just one factor considered in the process. Policies vary from institution to institution, but they can take into account an applicant's race, gender, or socioeconomic status. In fact, studies have found that white women benefit the most from affirmative action.
Diversifying what constitutes affirmative action could also shield institutions from being sued by the Department of Justice under Trump's guidance.
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"I think the impact on institutions is likely to be less than the administration thinks," Roithmayr said. "In anticipation of ongoing litigation, many institutions have already moved away from aggressively race-conscious affirmative action policies and shifted to affirmative action policies that focus more on wealth and class, or other measures of diversity."
MYTH: Asian applicants are negatively impacted by affirmative action.
Critics of affirmative action policies argue that Asian applicants have suffered as much or even more discrimination than white applicants during the admission process. This notion is largely based in the myth of the "model minority," which positions Asian students as consistently having a stellar academic performance. People who oppose affirmative action say schools prioritize people from other racial backgrounds and penalize Asian students for their academic achievements.
But the reality is a recent U.S. Supreme Court decision found that the admissions numbers for Asian applicants is not dropping because of affirmative action. In fact, some argue that eliminating affirmative action policies would hurt Asian students.
MYTH: People of color go to college for free.
Black people don't go to college for free thanks to affirmative action policies. Neither do Native Americans, Latinxs, Asians, nor any other racial or ethnic minority. Affirmative action policies are related to the admission process, not tuition.
I spent the summer between my senior year of high school and freshmen year of college teaching wilderness survival at a boy scout camp.
— Ashley C. Ford (@iSmashFizzle) August 2, 2017
I'm like, "Why?", and he literally says, "Can't afford it. I'm white, so you know, it isn't free for me." Y'all I just stared at him.
— Ashley C. Ford (@iSmashFizzle) August 2, 2017
They thought we got all kinds of stuff for free: jobs, housing, food, and apparently, whole ass college educations. Genuinely believed it.
— Ashley C. Ford (@iSmashFizzle) August 2, 2017
And even though there are scholarships and grants to help certain groups pay for school on top of federal financial aid, that money usually isn't enough to cover the astronomic cost of college today. In fact, studies have found low-income students and students of color shoulder most of the nation's student debt.
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MYTH: Everyone has an equal playing field in the U.S., so affirmative action is outdated.
A number of facts would dispute this: Issues such as school segregation at the primary and secondary level, poverty, the exclusion of students with disabilities, the underfunding of schools with a majority of students of color, all create barriers for many students who wish to obtain a higher level degree.
"Affirmative action helps to give people burdened by structural disadvantage a fair opportunity to compete," Roithmayr said. "It helps to remedy past and present discrimination, and to diversify the classroom."
And diversity on college campuses can radically alter someone's world view. Just look at the case of the godson of David Duke, who led the Ku Klux Klan and adores the Trump administration. Raised in a white nationalist household, Derek Black was on track to become the next leader of the Neo-Nazi movement until he went away to college.... and met people from different backgrounds.