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Challenging Race-based Admissions


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The Department of Justice might be ready to take on affirmative action.

KC Johnson

August 3, 2017


The New York Times broke the news Wednesday that the Justice Department is recruiting lawyers to work on a new project focused on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” The move generated predictable outrage from academic and liberal interest groups, who interpreted it as a reversal of federal support for affirmative action.

For 40 years, conservative and libertarian legal groups have questioned the wisdom and legality of racial preferences in higher education. And though the Supreme Court thrice has upheld the practice—in its Bakke, Grutter, and Fisher rulings—the one-vote margin in each of these decisions, and their confirmation that, even in higher education, limits exist regarding positive discrimination on the basis of race, leave this area of law somewhat unsettled. The use of racial preferences in college and university admissions also remains deeply unpopular in public opinion polling.




Framing the Trump administration as doing the bidding of whites at the expense of minorities doubtless fits the worldview of most New York Times editors, reporters, and readers. But as California Democrats learned, ignoring the grassroots concerns of Asian-Americans on this issue can be politically problematic. In 2014, Democrats in the California State Senate voted to put on the ballot a repeal of Proposition 209. The vote came despite California’s status as a state where (in 2012) 14 percent of high school graduates, but 49 percent of first-year students at Cal-Berkley, were Asian-Americans and Pacific Islanders. Asian-Americans saw the move as threatening the educational future of their children, and a grassroots campaign from this overwhelmingly Democratic constituency helped kill the repeal effort.  



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