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US Justice Department Says No Change in Affirmative Action Stance

The Department of Justice headquarters building in Washington.
The Department of Justice headquarters building in Washington.

The U.S. Department of Justice is throwing cold water on reports that it is exploring a new initiative to investigate and sue universities and colleges over race-conscious admission policies critics see as discriminatory against white applicants.

The New York Times and The Washington Post reported on Wednesday that the Justice Department's civil rights division will run the new project and is seeking current department lawyers to work on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The program, according to the Times and the Post, will be run by political appointees in the civil rights division's front office rather than by career lawyers in its Educational Opportunities Section.

It was not immediately clear whether the program is being set up specifically to deal with discrimination against white college applicants. The Times said it had obtained a copy of the personnel announcement but did not cite any direct references to a racial category.

A Department of Justice official confirmed the internal announcement but said it did not “reflect a new policy or program or any changes to longstanding DOJ policy.”

“Whenever there's a credible allegation of discrimination on the basis of race, the department will look into it,” the official, requesting anonymity, told VOA.

Civil rights

Rights groups reacted with alarm to what they said was the latest indication of the Justice Department's wavering commitment to civil rights.

Former Secretary of Education John B. King, who is now CEO and president of the Education Trust nonprofit, said he was “disheartened” by the reported initiative.

"Now is not the time to slow down on diversity initiatives or deter university leaders from doing the right thing for their communities, campuses, and for our nation's future prosperity," King said in a statement.

Brenda Shum of the Lawyers' Committee for Civil Rights Under Law said the project amounts to an attack on civil rights.

“The lawyers' committee believes that this action represents the next step in a pretty aggressive and strategic effort to roll back civil rights protections for historically disadvantaged groups,” Shum, the group's director of the group's educational opportunities project, said.

Affirmative action in college admission has long been a divisive issue in the United States.

The policy allows colleges and universities to consider race in admitting students. While proponents say it has helped improve diversity on college campuses and given otherwise disadvantaged students a shot at the American dream, critics see affirmative action as reverse discrimination against whites and Asian-Americans.

“You can call it ‘affirmative action’ or you can celebrate ‘diversity’ or you can set goals for ‘under-represented minorities,’ but when you consider a person's skin color in deciding whether to award her an admissions slot or a contract or a job — then you are engaging in racial discrimination,” Roger Clegg, president of the conservative Center for Equal Opportunity, wrote in a blogpost.

The center has welcomed the planned Department of Justice program.

Previous cases

The Department of Justice has never sued a college or university for discriminating against white applicants, though it has filed briefs in a number of cases, Herman Schwartz, a professor at American University's Washington College of Law, said.

While it has the legal authority to challenge a school's affirmative action practices, it is not likely to succeed, Schwartz said.

“They can initiate (litigation) all they want, but the law of the land is that individualized treatment of applicants is appropriate and will not be challenged or should not be challenged but will pass muster,” he said.

In a landmark decision in 2003 known as Grutter v. Bollinger, the U.S. Supreme Court ruled the University of Michigan Law School's affirmative action policy as constitutional.

In 2013 and again in 2016, the high court ruled in favor of the University of Texas' limited affirmative action policy. The case had been originally filed on behalf of Abigail Fisher, a white student who claimed she had been wrongfully denied admission to the school.

In 2014, Project on Fair Representation, a conservative legal defense foundation, filed lawsuits against the University of North Carolina over its use of race in admissions and against Harvard College on behalf of a group of Asian-American students.

The lawyers' committee is challenging both lawsuits. Legal experts say that unless the Supreme Court precedent is overturned, the chances of their success remain slim.