Affirmative Action in Jeopardy With New DOJ Order and Retirement of Justice Kennedy

The Trump administration is ending Obama-era policies calling on schools and universities to consider race as a factor in admissions, in the latest blow to affirmative action programs. The move doesn’t change the law, but it rescinds guidelines set by the Obama administration to foster diversity in elementary and secondary schools and on college campuses. The move comes as the Trump administration is reportedly planning a challenge to Harvard University’s admissions practices and as President Trump is nearing a decision on a Supreme Court nominee to replace retiring Justice Anthony Kennedy, who was long considered a swing vote on affirmative action. In 2016, Kennedy wrote the majority opinion when the court upheld the University of Texas at Austin’s race-conscious admissions program. We speak to Dennis Parker, director of the Racial Justice Program at the American Civil Liberties Union.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman. The Trump administration is ending Obama-era policies calling on schools and universities to consider race as a factor in admissions, in the latest blow to affirmative action. The move doesn’t change the law, but it rescinds guidelines set by the Obama administration to foster diversity in elementary and secondary schools and on college campuses.

It comes as the Trump administration is reportedly planning a challenge to Harvard University’s admissions practices and as President Trump is nearing a decision on a Supreme Court nominee to replace retiring Justice Anthony Kennedy, who was long considered a swing vote on affirmative action. In 2016, Kennedy wrote the majority opinion when the court upheld the University of Texas — Austin’s race-conscious admissions program. Kennedy wrote, quote, “It remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

We’re joined here in New York by Dennis Parker, director of the Racial Justice Program at the ACLU, the American Civil Liberties Union.

Thank you for joining us. Can you talk about what the Trump administration plans? They say they’re going to unveil this, I think, on Tuesday.

DENNIS PARKER: Well, what they plan, the initial thing was to withdraw the guidances that had been issued by the Obama administration. And as you pointed out, these are not guidances that have the force of law, but they show something about the direction that the agencies — the Justice Department and the Department of Education — plan to go in. And they show what they consider to be important. Those guidances said that — interpreting Supreme Court opinions, that there is a legitimate government interest in creating diversity and inclusion in schools, K through 16.

And by withdrawing those guidances, then the [Trump] administration is indicating that it no longer values those values of diversity and inclusion. And what’s more, it’s a whole different approach to the law. Instead of saying this is what you can do and this is what you should do, which is an important part of the Obama guidances, it is now warning institutions that they have to be careful that if they go too far, they are going to be sued by the federal government.

AMY GOODMAN: That Trump would sue them.

DENNIS PARKER: That Trump would sue them, yes.

AMY GOODMAN: So explain how it works now and why this is particularly focused on, well, your particular expertise, the issue of education.

DENNIS PARKER: The reason that it’s important is, is that this is an area of law which is extremely complicated, which is why the guidances were required in the first place. But, essentially, the cases that had been decided by the Supreme Court over the last 10 years have confirmed that institutions of education can take affirmative steps to increase diversity. Now, the rules are somewhat complicated, and they’re specific to each institution, but, essentially, what these guidances did was said this is what you can do, and this is what you should do.

Now it will be up to the Trump administration to determine whether or not they think colleges have gone too far. And we know from the things that they’ve said in the past that they are concerned that any consideration of race violates the Constitution. Now, that is not what the court cases have held, but it creates a chilling effect for the institutions, because now they face the possibility of being sued. They face the possibility of having actions challenging their receiving federal funding. And all of it, I think, is designed to deter these institutions from taking the steps that they’ve determined are best educationally for everyone involved.

AMY GOODMAN: So, President Trump is expected to announce his nominee for the Supreme Court Monday night —

DENNIS PARKER: Yes.

AMY GOODMAN: — to unveil this. Anthony Kennedy has been key on affirmative action. Explain the significance of him retiring.

DENNIS PARKER: Well, it’s enormously significant. He was the swing vote in all of the cases that looked at the question of what steps you can take to consider race in a way that is legal. He was the deciding vote. Having him gone and replacing him with someone who would side with the dissenters in all of the case at least creates the possibility that they will reverse the decisions that were passed before, and say either that they find that diversity is not a compelling governmental interest or that there is no way that you can put in place those policies without offending the Constitution. It creates the possibility that it will upend law that has been established now for a number of years.

There’s a general policy called stare decisis which says that you try not to change the law every few years, the idea being that the courts are part of the balancing that’s inherent in the government, and you don’t want a situation where every time there’s a new election, the underlying law changes completely. Whether they will observe that, whether they will honor that, remains to be seen.

AMY GOODMAN: Dennis Parker, explain why affirmative action exists. Explain the history.

DENNIS PARKER: It’s a complicated history. It exists for a number of reasons. The legal reasons, the reasons that the courts have identified, is the educational mission and the role that having diverse student bodies play for the education. The idea is that you can create a more vibrant educational community by having representatives from all parts of a society. And so that means geographic diversity and economic diversity and a diversity of backgrounds. What these cases said is that race could be one of many factors that can be taken into consideration. But the —

AMY GOODMAN: In fact, hasn’t affirmative action most overwhelmingly benefited white women?

DENNIS PARKER: It certainly has, yes. And I wish there were more support, honestly, coming from white women, both in elections and in referenda that are being staged or that have been staged in a number of states.

AMY GOODMAN: Explain what you mean.

DENNIS PARKER: Well, sadly, I mean, just as in the vote for the election, I think people vote against their interests frequently, and that there have been elections in a number of states where white people of both genders have overwhelmingly voted in favor of ending affirmative action programs.

But I want to go back to the question, too. I talked about the legal justification for affirmative action, but there is another important justification, and it’s one that is difficult to raise in the context of a court case, but it’s important in the context of this country. And that is that for a variety of reasons, most of them linked to a history of discrimination, people of color, lower-income people, people of particular ethnicities, people in a socioeconomic class have been excluded from institutions, have been, in the case of K through 12, consigned to segregated schools that were less resourced — the things that were identified in Brown, things that were separate and unequal. And so, affirmative action has changed that.

And if you have any question about whether it works, you can look at what happened in California after they passed their proposition that forbid affirmative action. The enrollment of people of color shot down almost immediately after the law went down or was passed. Those schools became less inclusive. I’d argue that they became worse schools, because they didn’t represent the whole range of views, the whole range of people, all of the different races, the complete diversity that there is in California and in the country.

AMY GOODMAN: How does this approach fit into Trump’s race policies, in general, or attitude toward race — for example, talking about those “fine people” marching in the Ku Klux Klan march at University of Virginia?

DENNIS PARKER: It’s almost hard to say where to start. But basically, what it suggests is that all of the steps that were taken before that were designed to create fairness, to create inclusion, seem to be the opposite of what the administration wants to do, so that, for instance, if you look at the emphasis that Jeff Sessions has had on, you know, the drug law enforcement — there have been studies that show that those disproportionately and unfairly target people of color. And to go back to a failed war on drugs is an example of ways — and it actually ties in with your earlier story. The Justice Department, the Department of Education were created to create opportunities. They’re turning it around now.

AMY GOODMAN: I mean, we’re here in New York, one of the most segregated cities when it comes to education.

DENNIS PARKER: Yes.

AMY GOODMAN: We’re here in the home city of Donald Trump, who got his start in business being sued by the federal government, him and his father, for not allowing African Americans into their housing.

DENNIS PARKER: Right.

AMY GOODMAN: How do those two connect?

DENNIS PARKER: They’re very connected. Every agency in the government is now taking steps that will deny opportunity in the way that that housing that the president and his father created years ago — that it is decreasing opportunity. It’s taking the teeth out of regulations that are designed to enforce fairness. It is, you know, making equivalence of Nazis and people who are asking not to be shot by police for no reason on the street. It is making it possible for people to feel comfortable making racial comments. It’s making it possible to justify taking children away from their parents because they are brown. It is making it possible for a —

AMY GOODMAN: We have five seconds.

DENNIS PARKER: — whole different language to be entered into the national conversation.

AMY GOODMAN: Dennis Parker, director of the Racial Justice Program at the American Civil Liberties Union.

I’ll be speaking at 4:00 today in Chicago. Check our website.