The forgotten history of affirmative action

Racial discrimination and police brutality sparked riots in the 1960s, and affirmative action was used to calm the unrest, historian Mark Naison says.

Posted: Jul 4, 2018 11:19 AM
Updated: Jul 4, 2018 11:26 AM

The Trump administration on Tuesday rescinded a set of Obama-era policies that promoted using race to achieve diversity in schools, teeing up new battle lines over admissions standards.

While the decision does not change current US law on affirmative action, it provides a strong illustration of the administration's position on an issue that could take on renewed attention with the departure of Justice Anthony Kennedy from the Supreme Court.

Attorney General Jeff Sessions made the official announcement Tuesday afternoon.

"The American people deserve to have their voices heard and a government that is accountable to them. When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President," Sessions said. "In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That's wrong, and it's not good government."

The Education Department did not immediately respond to a CNN request for comment.

The move, which was first reported by The Wall Street Journal, comes as the administration has thrown its weight behind a student group that accuses Harvard University of discriminating against Asian-Americans in its admissions process.

In a statement to CNN, Harvard spokeswoman Melodie Jackson said that it will "continue to vigorously defend its right, and that of all colleges and universities, to consider race as one factor among many in college admissions, which has been upheld by the Supreme Court for more than 40 years."

Last year, Sessions announced that he was ending the practice of the Justice Department issuing "guidance documents" that have the "effect of adopting new regulatory requirements or amending the law" but do not go through the formal rulemaking process. As a result, 25 documents were rescinded in December and 24 additional ones were rescinded Tuesday, including seven related to affirmative action.

The guidance reversed Tuesday provided examples of different educational contexts within which institutions could permissibly consider race and answered questions about how to interpret Supreme Court decisions.

Justice Department spokesman Devin O'Malley told CNN earlier Tuesday that the department "remains committed to enforcing the law and protecting all Americans from all forms of illegal race-based discrimination."

Tuesday's reversal does not affect what a school decides to do on its own within the confines of current Supreme Court precedent, but civil rights groups swiftly reacted with disappointment.

"We condemn the Department of Education's politically motivated attack on affirmative action and deliberate attempt to discourage colleges and universities from pursuing racial diversity at our nation's colleges and universities," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "The rescission of this guidance does not overrule forty years of precedent that affirms the constitutionality of a university's limited use of race in college admissions. This most recent decision by the Department of Education is wholly consistent with the administration's unwavering hostility towards diversity in our schools."

The National Education Association also reacted critically to the news.

"Affirmative action has proven to be one of the most effective ways to create diverse and inclusive classrooms. But by telling schools and universities that they should not use affirmative action to achieve inclusive classrooms, the Education Department has again failed our students," NEA President Lily Eskelsen García said in a statement. "President Trump has indicated he intends to appoint a nominee to the Supreme Court who will declare that affirmative action is unconstitutional in our schools. The Education Department's action forecasts how much is at stake in the upcoming Supreme Court nomination process. Our nation must join together and fight to ensure all our students have what they need to succeed."

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