Justice Department To Probe Universities Over Affirmative Action Policies

Steve Inskeep and Ailsa Chang talk to NPR's Carrie Johnson and Vanita Gupta, ex-head of DOJ's Civil Rights Division in the Obama-era, about plans to probe schools over affirmative action policies.

STEVE INSKEEP, HOST:

President Trump's Justice Department is launching an effort on affirmative action, an effort to see if affirmative action is hurting white people at universities. This is one of many changes in priorities under Attorney General Jeff Sessions. And we're going to begin our discussion about this with NPR justice correspondent Carrie Johnson. Carrie, good morning.

CARRIE JOHNSON, BYLINE: Good morning, Steve.

INSKEEP: So would you just explain the concept here? What is the concern and who's trying to address it at the Justice Department?

JOHNSON: This story is based on a hiring announcement that was put out by the Justice Department's Civil Rights Division first reported by The New York Times. Now, Steve, this is a thumbnail, not a full read-out of the plans by these new political appointees in the Justice Department. But the hiring notice mentions, quote, "intentional race-based discrimination in higher-ed admissions."

And these new positions would be managed by politicals at the Justice Department. Now, elections have consequences, especially for civil rights. But some career lawyers at Justice and veterans of that office are alarmed about what this could portend for the future.

INSKEEP: And let's be clear. When they say intentional, race-based discrimination, the concern they have is not discrimination against African-Americans or other people of color. The concern they have is that when there is affirmative action to help people of color, it is discriminating against white people.

JOHNSON: That is a longstanding concern among some conservative groups and activists. I'd point out that affirmative action is legal, Steve. The Supreme Court has said race can be considered as one of many factors in admissions in kind of a squeaker of a ruling by the High Court in 2016. No quotas but one of many factors is OK. Now, Steve, the NAACP Legal Defense Fund, the Leadership Conference on Civil Rights say using federal resources to investigate discrimination against white applicants when so many more pressing needs exist is just bad policy.

They also point out that this year is the 60th anniversary of the Civil Rights Division at the Justice Department. In their view, the wrong message to be sending in terms of resources to announce an effort like this. And it's really just part of a broader rollback of Obama era priorities in civil rights from protecting LGBT people to drug policy to policing.

INSKEEP: And does this reflect the personal concerns of Attorney General Jeff Sessions? I mean, political concerns, actually. Is this something that's been a major priority or a major concern for him for a long time?

JOHNSON: This has been a strain of conservative thinking outside the government and inside the Senate and inside the Cabinet. Attorney General Jeff Sessions is really the embodiment of a lot of this thinking, not just on civil rights but also on voting rights, on LGBT people. And he's also talked about wanting to make police partners instead of investigating police.

This issue, I'm sure, is going to focus in the confirmation hearing for President Trump's leader of the Civil Rights Division, Eric Dreiband, who's a former general counsel of the EEOC.

AILSA CHANG, HOST:

Right. So these reports signal a real U-turn from President Obama's policy towards affirmative action in college admissions. I want to bring in a voice from the Obama Justice Department. Vanita Gupta is with us. She led the department's Civil Rights Division until earlier this year. Welcome.

VANITA GUPTA: Good to be here. Thank you.

CHANG: Vanita, what do you make of these reports?

GUPTA: Well, you know, I think I learned with some alarm that the Justice Department is setting up the stage to sue colleges over admissions policies that discriminate against whites. And yet in some ways, it's also we've seen this playbook before. What's unusual here is while there's been a longstanding movement to try to undermine educational diversity in this country, the federal government has not initiated suits against colleges in this way.

It's usually that the federal government has weighed in through amicus briefs on the like. So this is a fairly aggressive move to really undermine a core aspect of trying to ensure that all students have - that talented students from all backgrounds really get a close look at fair shot at overcoming obstacles to educational opportunity.

CHANG: An aggressive move but is it actually your view that white people are not being discriminated against by universities?

GUPTA: Look, the United States Supreme Court has time and time again upheld the constitutionality and compelling state interest of policies that work to foster greater diversity in higher education. And that, you know, just as recently as Carrie mentioned in a case out of the University of Texas, the Supreme Court in June of 2006 found that the University of Texas has a compelling interest in creating a diverse student body and may use race as one of multiple factors in admissions decisions.

CHANG: Right.

GUPTA: And so I think this is a core thing that universities are struggling with. They strongly believe that learning with people from different backgrounds and perspectives really is a benefit to all students and not just to students but really to our workforce and to the country as a whole.

CHANG: Right. Race can be one factor. But is it valid on the Trump administration's part at some level to make sure that universities stay within the constraints of that case law?

GUPTA: Sure, I mean, the Justice Department needs to enforce the law. The thing that is kind of atypical here is that the Justice Department is really turning civil rights law on its head. It was civil rights laws that were aimed at ensuring that students of color and all students are able to access education in an equal way and to be able to have a diverse student body.

And so I think there's - this is a very particular focus. The career lawyers at the Educational Opportunities Section day in and day out for years have been enforcing the anti-discrimination laws to ensure equal opportunity for all students. And it's not - I think it's fairly noticed - noteworthy that this project is going to be run out of the political front office of the Civil Rights Division. One can only assume that the career lawyers in that section didn't want to engage with this project.

INSKEEP: Ms. Gupta, I want to ask about the politics of this. You've explained the law that affirmative action is legal, that this needs to be subtle. Race is one of several factors that are supposed to be considered. It's not just supposed to be a blatant choice based on race. Yet, as I'm sure you know, on a political level, raising this issue does speak to a lot of white Americans who feel that on some level, if an African-American gets an advantage, it's something that is taken away from a white person. On a basic level of fairness, what do you say to people who feel that way who may feel that they relate to this policy change?

GUPTA: I - you know, the reality is that schools and diversity is really kind of one of our nation's greatest strengths. And universities are really struggling and working hard to try to tap that strength and expand opportunity for everyone in this country. I think there's a way, and this has been a longstanding issue and debate in this country about whether that creates unfairness for whites, the original animated - the original reason to have these laws was to ensure that people who had severe barriers to educational institutions, African-Americans, Latinos and others, were able to have equal opportunity to be in these institutions of higher education. And I think that the Trump DOJ's planned attacks on universities is really going to take our country in the wrong direction.

CHANG: As you zoom out and just kind of look at the wider strategy of this new Justice Department under President Trump, how do these latest reports sort of fit in in the scope of that, at least in your view?

GUPTA: Yeah, no, look, the - on voting rights, on police reform, on LGBT rights now, you know, here, I think the Sessions Justice Department has had a decidedly anti-civil rights agenda. And it's not just about dismantling kind of the progress that was made in a prior administration. I really think it's about advancing an image and view of this country that is narrow, that is not inclusive. And this is the kind of view of the country that the Justice Department is advancing.

And as you mentioned, this year in September, the country will be recognizing the 60th anniversary of the creation of the Civil Rights Division, which has existed over the last several decades to enforce our nation's civil rights laws, to ensure inclusivity and justice and fairness for all. And so, you know, the great irony right now is this is an administration that is certainly working its way back to take us to a vision of this country that simply is quite regressive.

CHANG: Vanita Gupta is president and chief executive officer of the Leadership Conference on Civil and Human Rights. Thanks so much for joining us this morning.

GUPTA: Thank you.

INSKEEP: And NPR justice correspondent Carrie Johnson is still with us. Carrie, as you were listening to do Vanita Gupta, what stood out for you?

JOHNSON: Well, just this notion that we've been fighting for decades now about who - the value of diversity in schools and elsewhere. That fight now centrally within Donald Trump's Justice Department and Jeff Sessions' Civil Rights Division, which, by the way, has been facing questions from within its own ranks. Just yesterday, Jeff Sessions put an Army general in charge of the Federal Bureau of Prisons at a time when people are concerned about militarization of the American justice system. These folks have strong priorities on what they want to do, and they don't seem to be very concerned about some of the pushback they're receiving.

INSKEEP: How supportive are career prosecutors feeling about this attorney general?

JOHNSON: You know, they have been defending him, Steve, in the wake of attacks - brutal attacks - from President Trump as a bastion of integrity and a symbol for the independence of the Justice Department. And I haven't seen much of a retreat from that position, even though they may not agree with some of his moves this week.

INSKEEP: Carrie, thanks very much, always appreciate it.

JOHNSON: You're welcome.

INSKEEP: That's NPR justice correspondent Carrie Johnson.

Copyright © 2017 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.