Weeks before Republicans officially nominated Donald Trump for president last summer, Abigail Fisher lost her Supreme Court case. Fisher had already graduated from Louisiana State University, but she had sued because she hadn’t been accepted by her top choice, the University of Texas. Fisher alleged that because race was one of several factors for admission, she had been rejected in 2008 because she was white.
Actually, her academic inadequacies were probably why she didn’t get in, but that never slowed her down. Fisher and her legal team, not to mention the conservative crusaders who used her case to eliminate racial considerations in collegiate admissions, constructed the notion that she had been cheated somehow. Her entitlement drove Fisher to pursue the end of race-based factors in admissions everywhere, all because she didn’t get what she felt that she deserved.
Thankfully, the Supreme Court disagreed with her in a 5-4 decision. Thanks to Justice Anthony Kennedy reversing course from his own record on such cases, there is now precedent protecting academic institutions that use race as a factor in deciding which students to admit. Affirmative action managed to survive Abigail Fisher.
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It will be tested anew by Trump and his Attorney General, Jeff Sessions. The New York Times reported on Tuesday night on an internal memo indicating that the Department of Justice’s Civil Rights Division will be launching a new attack on affirmative action. In a move echoing its approach during the George W. Bush administration, the division will redirect its resources toward investigating and suing colleges and universities “deemed to discriminate against white applicants,” according to the reporting.
The front office, stacked with Trump political appointees, will do this work, not the Educational Opportunities section, which typically works on cases involving racial injustice on campus. Nor will the Department of Education be involved, despite its civil rights chief having once complained of reverse discrimination herself. The Bush-era Justice Department also opted to side with white students in similar cases, but as NAACP Legal Defense Fund president Sherrilyn Ifill noted, it didn’t truly present this kind of organized offensive against efforts to diversify colleges.
“This is an affirmative decision to deploy the limited resources of the department to try to subvert and diminish the Supreme Court’s decision on affirmative action,” Ifill told The Daily Beast. “Seen in that light, it is markedly different than what any other administration has done in this space in the last 40 years.” A Justice Department source told The Daily Caller, a conservative outlet, on Wednesday that the story about this new white-specific anti-discrimination effort was without merit, and that it “appears to assume it deals with white students without evidence.” However, the document obtained by the Times seeks lawyers interested in working on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.” That’s code for affirmative action. White women like Fisher still benefit greatly from it, but attacking that policy certainly isn’t about furthering racial equality.
In fact, this new initiative isn’t about “justice” in any literal sense. It reeks of retribution. Trump’s personal obsession with undoing all thingsObama is surely a superficial element of it, given how much of his birther crusade focused upon his predecessor’s academic qualifications. The president’s family has also benefitted from a different brand of admissions preferences. Three of Trump’s children had legacy at the same school Trump (and I, for that matter) attended, the University of Pennsylvania. Trump’s son-in-law, Jared Kushner, had his Harvard acceptance all but purchased for him by his father, Charles. Don’t hold your breath waiting for that brand of affirmative action to be checked.
The Attorney General, under fire from the president because he recused himself from the Russia probe, has been salivating too long for an opportunity to dismantle civil rights to quit now. If you’re looking to revive white supremacy, there are bigger targets than affirmative action. And Sessions is already on top of those: voting rights, marijuana users, and civil rights protections for LGBTQ Americans are currently under attack.
Yet affirmative action remains one of the right’s favorite bogeymen because it offers a delicious fiction on a platter. Much like collegiate admissions, racial progress is often viewed incorrectly as a zero-sum game, where progress towards equality means fewer rights for white people. Though it is an insufficient step toward reparations for slavery, race considerations in collegiate admissions is one of the more notable systemic efforts to remedy the representational racial disparities that are built into American institutions. Affirmative action was never going to end racism, but it certainly wasn’t racism. Yet, the right often portrays this remedy as the disease itself.
This is textbook white fragility, a cultural plague gripping lower- and middle-class white Americans who have been instructed by politicians and opportunists to blame the nearest black or brown person for whatever travails they may suffer. This used to be plain old fragility way back when, when immigrants of a lighter hue were regarded as the threat. But any degree of African American social advancement has always been a trigger for those white citizens who so enjoyed the former status quo. Often, they react by electing people who encourage them to feel like victims of a system that is actually built to sustain their advantages. When a program like affirmative action offers a possible leveling of an imbalanced playing field, it gets labeled as discrimination. That way, when trying to reverse civil rights gains, those folks don’t have to acknowledge that they are the bad guys.
Trump fed this mindset to his advantage, often portraying the white working man as someone who could no longer get a break in America. It is well-documented that cultural resentment was more of a factor in his November victory than was “economic anxiety” or the like. Polls have borne this out. A March survey published by the Public Religion Research Institute found that nearly as many white Americans polled felt that they are discriminated against as much as their black counterparts. White Republicans were even more insistent on this question. Forty-three percent of those respondents argued that white people are subject to the most discrimination, while only 27 percent of them said that about African Americans. While a later PRRI poll also showed that “fears of cultural displacement” motivated voters most likely to support Trump, economic fatalism also contributed to their fervor. A majority of “white working-class Americans” responded that they thought college was a “risky gamble.” Most respondents of color felt just the opposite, believing that a degree was still a path toward economic uplift.
That remains to be seen. Black folks have long been indoctrinated with the myth of the American Dream, a meritocracy where, if we work hard enough and if just enough bootstraps are pulled up, our excellence will be rewarded. It’s why many avoid evangelizing about affirmative action, or even admitting that it has helped us. But as a new study shows, believing in this meritocratic ideal while ignoring social barriers can actually have an adverse affect on poor folks and people of color. It hurts black and brown children to believe unswervingly in the promise of America because it wasn’t a promise made to us. This new move by the Justice Department underscores that reality in a painfully obvious fashion. That is true, even if it doesn’t fully succeed in eliminating affirmative action as a policy.
“There are lots of reasons why the project may not work,” Ifill said. “If you think about the track record to subvert affirmative action, it has been extremely well financed and extremely unsuccessful. It has been a failed project.” She also noted that universities, which genuinely value diversity as an academic imperative, will fight the Justice Department on this. But even though the Trump administration’s investigations and lawsuits may meet resistance from lawyers, activists, and legal precedent, this attack on affirmative action will only further convince certain people in this country that the provenance of the American Dream is theirs alone, unavailable to immigrants and citizens of a different hue.
By just announcing the approach, Team Trump has likely scored a hit with the only Americans whom Trump cares about: his unswerving, nearly monochromatic base. It won’t help that base actually get nearer to a college education, mind you. It’ll just keep other people out. That, it seems, is enough.
