August 2, 2017
According to published reports, the Trump administration appears poised to direct the Department of Justice to begin investigating, and potentially litigating against, institutions over what it characterizes as “intentional race-based discrimination in college and university admissions.” This initiative, first reported by the New York Times, is purportedly reflected in an internal DoJ communication obtained by the Times seeking Department staff attorneys to volunteer to work on the investigations and/or litigation. At this point, it is not clear whether institutions will be targeted on a random basis or (perhaps more likely) based on complaints received by the Department.
This initiative, of course, comes in the aftermath of the Supreme Court’s rulings with respect to the University of Texas’s affirmative action admissions programs in the Fisher decisions. Those decisions recognized the creation of a diverse student body as a compelling educational interest, but also emphasized that an institution must not make race the defining feature of a candidate’s application for admission, and must be able to demonstrate that it has seriously considered race-neutral alternatives and that no workable race-neutral alternatives would produce the educational benefits of diversity “about as well and at tolerable administrative expense.” Although this may not require institutions to implement race-neutral alternatives and demonstrate their failure, as we have previously advised, institutions should ensure that they are able to document evaluation of such alternatives in order to defend challenges to their admissions programs. The apparent advent of the reported Department of Justice initiative may quickly render this consideration more important than ever, and the prospect of challenges more than theoretical.