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File photo: Abigail Fisher was back at the Supreme Court Dec. 9 for the second hearing of her case, which alleges that she was rejected by the University of Texas at Austin because she is white. Credit: File photo: Meredith Kolodner

This chat transcript has been lightly edited for clarity.

Editor’s Note: The Trump Administration has denied reports that they are launching a large-scale investigation into affirmative action policies in college admissions. Instead they say the Justice Department is only looking for lawyers to work on a single case brought against Harvard University by Asian-American students who say that university’s affirmative action policies harm them. This is at odds with an internal memo obtained by The New York Times, which suggested a more expansive program of  “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

Sarah Butrymowicz: There was some important breaking news out of the Justice Department last night that we just had to assemble a team to weigh in on. The New York Times reported that the department’s Civil Rights Division is looking for lawyers to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The document The Times obtained doesn’t specify which race or races are being discriminated against, but the language seems to pretty clearly indicate the Department is interested in investigating affirmative action programs and is concerned about discrimination against white students.

There is a ton to talk about here so without further ado, let’s dive in. First, I want to get everyone’s initial reaction to reading this news. Mine was something along the lines of: Wait. What??

Meredith Kolodner: I guess I wasn’t surprised that they were doing it – they signaled that during the campaign – but it still is surprising, in that it goes against the evidence of who is getting hurt by current admissions policies.

Tara García Mathewson: I agree. It’s not entirely surprising that this is the direction this administration is taking, especially considering that The New York Times reported it will be political appointees working on this project, rather than career Justice staffers. It is perhaps surprising that it is coming so soon on the heels of the Supreme Court’s Fisher decision just last year, which upheld race-based consideration in admissions at the University of Texas at Austin.

“I think the root of the Administration’s argument, and of those who agree with them, is that there is no systematic racial discrimination in this country, only isolated incidents, so any systematic attempt to go after racial discrimination hurts white people.”

Emmanuel Felton: I was most surprised by the fact that this operation would be run out of the Civil Rights Division at all, not by a commission like the one on voting rights. I feel like they must know that most of the career lawyers won’t be on board.

Meredith: That’s a good point Emmanuel, I wonder what those conversations looked like…

Sarah: Well, you all had much more insightful reactions than I did. Let’s take a step back and talk about affirmative action. What’s allowed right now and not allowed? What do we know about the impact it’s had? What are the arguments for and against it? (I know I just broke reporting rules by asking too many questions at once. Bear with me.)

Tara: The Supreme Court has held several times that universities can consider race as long as it is part of a more holistic consideration process. Quotas are not allowed, meaning universities can’t say they want to replicate the racial breakdown of the country and mimic it exactly, percentage by percentage.

Meredith: In terms of impact, people of all races have been earning more college degrees, but there’s no evidence that white students are being systematically harmed by the policies in place – to the contrary, actually; the gap in who has a college degree has grown between whites and blacks and whites and Latinos.

Tara: Yes, and the top beneficiaries of affirmative action programs so far have been white women.

Meredith: Specifically in the public systems, the percentage of black students at state flagship universities is lower than it was a decade ago.

Emmanuel: There’s this feeling from some on both sides of the political spectrum that an economic version of affirmative action could sidestep a lot of the problems that have come with having explicitly racialized programs, but it’s key to look at the University of Texas at Austin, which just had its admissions program upheld by the Supreme Court. The vast majority of applicants are admitted through the Top 10 percent program, which grants automatic admission to, well, actually the top 8 percent of graduates at all Texas high schools, but what we see there is white and Asian students are still greatly overrepresented compared to the Texas K-12 population overall.

Meredith: That’s right – when UT Austin temporarily got rid of the holistic program, the percentage of blacks and Latinos dropped.

Tara: On that note – I just got an email about a new book by an Israeli professor who compared race-based affirmative action in the U.S. and class-based affirmative action in Israel, finding that one without the other doesn’t get the benefits of a hybrid model. Here’s the link. Sigal Alon (the researcher) recommends embedding considerations of race into a class-based affirmative action model.

Sarah: Speaking of UT Austin, can we talk specific schools for a second? Or even types of schools. Who’s at risk of being investigated and sued here? Is it state systems? Private schools? Everyone and anyone?

Emmanuel: It seems like everyone to me, right? I know a lot of conservatives have been really excited about getting at private schools.

Meredith: I think the root of the Administration’s argument, and of those who agree with them, is that there is no systematic racial discrimination in this country, only isolated incidents, so any systematic attempt to go after racial discrimination hurts white people. So yes, I believe it’s everyone, although I assume they will choose strategically – for biggest political impact.

Tara: Yes, it seems like elite schools both public and private are probably going to be targeted. These are the ones that people are most upset about not getting into.

Emmanuel: With all of this, the original idea was that these measures would only be needed temporarily, but that was assuming policies would work in concert – that policies aimed at reducing housing segregation would have worked, and we wouldn’t see that black and Hispanic students are still much more likely to attend high poverty schools than their white peers.

“It seems like the national conversation has fully looped back around to Nixon’s silent majority.”

Sarah: The Department of Education has its own civil rights office. This is being taken up by the civil rights division of the Justice Department. Is that important? What’s the purpose of the Justice Department’s civil rights division? And one thing I want to note is that the civil rights division was created in 1957 in the wake of Brown v. Board of Education – a landmark case for desegregation efforts. I find it ironic that that division is now looking to go after programs that are meant to increase integration.

Tara: Yes, many of the reactions to this news have been about how the perceived focus of the effort is turning the whole purpose of the division on its head.

Emmanuel: It’s really something. I guess he [President Trump] did run on restoring the rights of white people.

Meredith: Yes, and on fear of their coming minority status – real economic grievances become racialized.

Emmanuel: It seems like the national conversation has fully looped back around to Nixon’s silent majority.

Tara: As far as I’ve seen, the Education Department has not commented on this. Its Office for Civil Rights and the Justice Department’s Civil Rights Division have often worked in concert, though.

Sarah: It’s probably also worth noting that Candice Jackson, the woman tapped to run the Education Department’s civil rights office, said that while at Stanford University she was discriminated against for being white when she tried to join a section of a calculus class that was reserved for minorities. So, although we don’t have an official comment from the Ed Department, that might give a clue.

Tara: For sure. It is very unlikely there is any disagreement from Trump appointees in both departments about whether this is worth focusing on.

Meredith: And Education Secretary Betsy DeVos was clearly not fully up to date on the history of racial segregation and its continuing impact when she first came into office, given her comment about HBCUs being pioneers of the school choice movement.

Sarah: The New York Times piece included people in support of this idea, including Roger Clegg, who served in the civil rights division under Ronald Reagan and George H. W. Bush. They wrote that he “suggested that the project would look for stark gaps in test scores and dropout rates among different racial cohorts within student bodies, which he said would be evidence suggesting that admissions offices were putting too great an emphasis on applicants’ race and crossing the line the Supreme Court has drawn.” I have to add the disclaimer that this, as far as we know, isn’t an official proposal. But what do we think of that idea?

Meredith: The idea of using dropout rates to test for racial bias in admissions does not have evidence to support it. Research has found that the reasons for dropping out tend to be financial and personal, not because of a lack of academic aptitude.

“The idea of using dropout rates to test for racial bias in admissions does not have evidence to support it. Research has found that the reasons for dropping out tend to be financial and personal, not because of a lack of academic aptitude.”

Tara: A number of researchers have shown that’s misguided. One example: Washington, D.C. public schools have shifted their whole model for college advising to help students identify schools that have done well by prior DCPS grads (who are predominantly black and Latino). Clearly, some schools have large gaps in academic performance across racial or ethnic groups and some do not. Georgia State has done a lot of work to close gaps, and administrators seem to recognize it is incumbent on them to address services and supports, not change their admission policies.

Meredith: A study from the Georgetown University Center on Education and the Workforce found that students with average SAT scores (about 1000) had a 77 percent chance of graduating from a selective university – compared to a 51 percent chance at an open-admission college. Meaning that test scores don’t do a great job of predicting academic success.

Emmanuel: This was the most whiplash-inducing idea I’ve read in the past 24 hours. I immediately thought about how the Obama Administration highlighted programs that did a good job getting students from disadvantaged backgrounds through college, like Georgia State’s. His administration put it on colleges to not let these students slip through the cracks. This new tactic would be blaming the students. I mean, not only do black and Hispanic students go to worse K-12 schools, they also have to borrow more to go to college. There are a million reasons they don’t graduate at the same rates.

Tara: Meredith, in addition to the takeaway that test scores don’t greatly predict academic success, it also indicates that institutions play a role. Other studies have found the more selective the institution, the better black students do. In part it’s about high expectations and being around other high performers.

Sarah: All right, let’s start to wrap up. Any final thoughts?

Emmanuel: Well, I think we’ve just seen Trump’s first real education policy and I think this gives us a window on what we can expect from the next three and a half years.

Tara: We should definitely mention that the two cases currently pending before the Supreme Court that address affirmative action policies come from the angle that Asian-American students are discriminated against. This is becoming a common argument from affirmative action opponents. They aren’t just arguing white students are getting hurt. It will be interesting to see whether these Justice Department officials end up going after perceived discrimination against Asian Americans or white Americans.

Meredith: I would just add that if people think this is something to help Trump’s rural/working class/poor white base, I don’t see how that works. Their issues are financial access to college, not that black or Latino students are taking their places.

Sarah: We will leave it there. Thanks, guys!

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