The Justice Department is planning to investigate and sue universities over affirmative action admissions policies that determine that determined discrimination
against white applicants. According to a document obtained by The New York Times, the project will not operate out of the Civil Rights Divisions Educational Opportunity Section, where career Justice attorneys oversee cases on universities, but instead in the front office of the division, where the Trump administration's political appointees work. My guest is Casey Johnson, a professor at Brooklyn College. Casey, let's start with the Supreme Courts position on affirmative action.
What is it? The Court has said that, under limited circumstances, colleges and universities can use race in the admissions process. They can't use it as a quota, they can't have a large numerical scale, but in what universities often call a holistic environment, which is that race can be used as one of a number of factors to tip up an applicants uh candidacy in the admissions process. There have been three decisions, one in eight one in two thousand three.
The most recent this Fisher decision out of the University of Texas. So there's some limitations on what universities can do, but they they are allowed to use race in the in the process. So what do you envision this investigation will entail One of the questions. The question of of affirmative action and higher education has been something that's divided liberals and conservatives for forty years. This is why it's
constantly gone back to the court. The conservative argument is that despite these decisions from the Supreme Court saying you can't use quotas, that effectively what elite universities have done is to use quotas. If you look at the percentage of students African American or Hispanic students at Harvard or Yale,
it's roughly the same percentage every year. So the argument that I think is behind the Attorney General's claim here is that if the government can get inside these university admissions offices, what they will discover, and again there's no hard evidence of this um what they'll discover is that universities are going beyond the limitations of the Supreme Court has said uh in tipping up the scales for for Africa,
mostly African American and Hispanic. So casey, what kind of evidence would show that are they going to be going through the the the essays they submit, their extracurriculars, their numbers, and the s A T s. You know all that. There there are a couple of lawsuits, one filed against Harvard, one filed against the University of North Carolina on behalf of Asian American students, and my sense is that those lawsuits give the kind of map as to what we
could see in these sorts of approaches. And what those lawsuits argued was that colleges seem to admit Asian American students with a much higher essay average S A T than African American or Hispanic students, with white students in
the in the middle. So I think, what what will see the Justice Department asking for again if these lawsuits actually advanced, which is which is not certain at this stage, would be to say, all right, if you have a candidate, say an Asian American candidate with an s A T score that's three hundred points higher than an African American candidate, what was the college's real justification for admitting the African
American candidate? Was it that the African American candidate had say, great extracurricular is a compelling life story that there was a real reason here or was this as part of a of a quota, And I suspect what they would be looking for are less things like the the candidates essays than internal correspondents amongst the admissions offices or university administrators urging certain kinds of candidates to be admitted. How does this fitting in with the approach of the Justice
Department's Civil Rights Division under the last few administrations. This this is a section of the US government. We live in a polarized society, but it's it's a section of the US government that has been particularly polarized. In the Bush administration, this tended to go to they're very conservative appointees. Here in the Obama administration, there were very liberal appointees
in this office. So in a lot of ways, this is you know, there's been a lot of different things during the Trump administration, but but this is sort of politics as normal. Uh, this is this is a part of the U. S Government that tends to go to the more liberal or the more conservative elements of the coalition.
So I suspect that if you know, if Ted Cruz had been elected president or John Kasik had been elected president last time, we would have been seeing more or less the same kind of thing from the Justice Department. This is a pretty mainstream conservative position. And would you if I asked you to predict, would you predict that lawsuits suits with will come out of this Lasses are
almost certainly going to come out of it. And the interesting question here is that when will These lasses are almost certainly going to make their way to the Supreme Court. At some point the current Supreme Court, these lawsuits likely would be defeated because Justice Kennedy in the Fisher decision signaled in a greater acceptance of affirmative action than he had in the past. But it's entirely possible that these lawsuits could make it to the Supreme Court after Justice
Kennedy has departed. And if that's the case, then then all bets would be off. Thank you for being on Bloomberg Law. That's Casey Johnson. He's a professor at Brooklyn College.