On Tuesday the Trump administration rescinded guidance issued by the Obama administration on the use of race and ethnicity in college admissions. While the guidance was not binding, it was an indication of how the administration might defend challenges to the use of race in admissions. With Tuesday's announcement, it is clear that the Trump administration has no intention of defending law established over 40 years of Supreme Court review.
From the Bakke decision in 1978 to the Fisher decision in 2016, the Supreme Court has consistently upheld that diversity in higher education is a compelling interest and that institutions may consider race or ethnicity as a factor in their admissions decisions. How institutions evaluate the use of race-neutral strategies in achieving their diversity goals and how they construct a narrowly-tailored process to consider race as a factor when race-neutral strategies fail to achieve those goals remains a work in progress. Those processes must meet strict scrutiny and will be distinct for each institution based on their mission and goals. But the ability to consider race in admissions is firmly established in law.
The announcement by the Trump administration serves little purpose other than to add confusion to an issue where passions already run high. With the prospect of a new Supreme Court Justice in the fall and a challenge to Harvard's use of race and ethnicity in admissions pending, our commitment to diversity and inclusion in higher education is once again at risk. AACRAO will continue to assist our members in developing admissions practices that follow the guidance of the courts and help them achieve, as Justice Sandra Day O'Conner noted in her majority opinion in Grutter v. Bollinger in 2003, "educational benefits that flow from a diverse student body."