Justice Dept plans to sue colleges over affirmative action, NYT reports

The Justice Department's civil rights division plans to investigate and sue colleges over affirmative action policies, according to an internal memo obtained by the New York Times.

The internal announcement to the civil rights division announces that the department is seeking to hire lawyers interested in a new project related to "investigations and possible litigation related to intentional race-based discrimination in college and university admissions," the Times reported late Tuesday night.

A spokesperson for the department declined to comment on the job posting, telling the Times that the department "does not discuss personnel matters."

The Department of Education has not yet responded to a request for comment, according to the Washington Post. However, the Post reports that at least one Department of Education official has expressed concerns about race-conscious admissions policies: Candice Jackson, acting head of the department's Office for Civil Rights, who wrote in 2005 that the policies overlook "the very real prices paid by individual people who end up injured by affirmative action."

Colleges may face federal compliance reviews, some experts say

The report was a surprise to supporters of affirmative action, Inside Higher Ed reports. It's been only one year since the Supreme Court upheld a race-conscious admissions policy in the case Fisher v. University of Texas. And that decision came three years after a separate case in which the court upheld an affirmative action policy, Inside Higher Ed reports.

What the Fisher decision means for higher ed: The Supreme Court did not wholly embrace affirmative action

Also see: Everything you need to know about the Fisher case

Critics of race-conscious admissions policies welcomed the report. Roger Clegg, who formerly served as a senior official in the civil rights division of the Department od Education under the Reagan and first Bush administrations and now serves as president of the conservative Center for Equal Opportunity, praised the initiative as "welcome" and "long overdue," the Times reports.

"The civil rights laws were deliberately written to protect everyone from discrimination, and it is frequently the case that not only are whites discriminated against now, but frequently Asian-Americans are as well," he told the Times.

Diversity advocates tell Inside Higher Ed they have concerns about the Justice Department's initiative. Shirley Wilcher, executive director of the American Association for Access, Equity and Diversity, characterized the report as "tragic," adding, "it is our hope that this turnabout will not have a chilling effect on collegiate programs that have been supported by the Supreme Court."

Nancy Cantor, chancellor of Rutgers University at Newark and co-editor of Our Compelling Interests: The Value of Diversity for Democracy and a Prosperous Society, told Inside Higher Ed that "We need to keep our focus on cultivating the diverse talent in our country—we can't be a prosperous democracy and leave the growing talent pool on the sidelines. Let's not get distracted from our social responsibility by efforts to pit groups—we all need opportunity and we all depend on each other's talent."

Why inclusion efforts aren't keeping up with diversity on campus—and what you can do about it

Legal experts told the Chronicle of Higher Education that it's not surprising that a conservative administration would challenge race-conscious admissions policies, especially considering that the policies have faced several challenges in recent years.

The trend might be happening because the Supreme Court has not yet set clear legal limits for race-conscious admissions policies, Donald E. Heller, provost at the University of San Francisco and longtime researcher of race, class, and college access, told the Chronicle. "We won't know until there is another test case," he said.

Some legal experts expressed concerns to the Chronicle that the federal government may launch compliance reviews of race-conscious admissions policies, asking colleges under review to submit data supporting their consideration of race in admission. Writing for the Chronicle, Adam Harris notes that institutions with race-conscious admissions policies are supposed to collect this data anyway, but "having [the data] on hand is one thing, submitting it to scrutiny is another" (Savage, New York Times, 8/1; Horwitz/Brown, Washington Post, 8/1; Jaschik, Inside Higher Ed, 8/2; Harris et al., Chronicle of Higher Education, 8/2).

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