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The DOJ’s Absurd Move to Drum Up Support From… White People


In today’s edition of “This Administration Has Got to Be Kidding Me,” our federal government has apparently decided to use the Department of Justice to go after universities that discriminate against white people. You know, because that’s the big problem on our campuses. Not enough white students. Don’t worry, though. According to the internal document reported on by The New York Times, the DOJ isn’t even pretending that this is an actual education problem; instead of running this project out of the Educational Opportunities Section (the department that always handles work involving schools and universities), it’s being handled out of the “front office,” (which is where the political appointees work). So basically what we’ve got is a federal government who is going to increase its political capital by solving a problem that doesn’t exist while worsening one that’s plagued our country for decades. Good times.

Before anyone starts complaining about how tough it is to be white these days, let’s briefly recap how the law works with respect to affirmative action policies. When a government entity treats people of different races unequally, it raises a red flag. Race-based classifications, regardless of the classification’s purpose, are subject to “strict scrutiny.” That means that the classification can only stand if it is narrowly tailored to achieve a compelling state interest. Jim Crow laws, for example, were largely struck down on the basis that bigotry is clearly not a proper governmental goal. Affirmative action policies, by contrast, generally have the laudable goal of remedying discrimination and lack of diversity, but even those policies will fail when they are not closely tailored enough to meeting their goals. The Supreme Court has ruled on university affirmative action policies several times, and although the decisions have been confusing in that the justices tend to offer a plethora of viewpoints, the results are still highly predictable. Affirmative action policies that have racial quotas are illegal. Polices that aim to increase racial diversity by considering race as one of several admissions factors are fine.

There have been several cases in which white prospective students brought equal protection claims against public universities for their race-based admissions policies. The outcomes? Basically, win some, lose some. But in every case, SCOTUS applied the same rules to the facts at hand and considered whether the university went too far in its quest for diversity. And therein lies the monumental misguidedness that is the Trump DOJ: by manufacturing as many of these cases as possible, the administration seems hell-bent on drumming up drama for the pure purpose of winning a popularity contest among whites who absurdly feel disenfranchised every time their majority is threatened.

Don’t get me wrong. It’s entirely possible that there are public universities out there with admissions policies that push legal boundaries. And there’s nothing wrong with someone holding those schools to accountability. But to create a task force to hunt down those evil institutions that disadvantage white students is patently ridiculous. To have a DOJ packed with Trumpsters do it is even more so.

I mean…

Affirmative action and its ability to help the problem of racism and disadvantage is undoubtedly a complex issue. Even those with known slants against any whiff of affirmative action, like Scalia and Thomas, have raised more than a few valid points about why the policies can be bad ideas. Reminder though: the fact that a school could utilize a better policy doesn’t mean the one it is using is illegal. Oh and by the way, even Scalia and Thomas didn’t vote against affirmative action policies because they felt bad for white people. Their arguments usually centered around a perceived lack of effectiveness of a policy, or about the failure of a policy to comport with other federal law. Trust me when I tell you that a bench full of Harvard Law grads are self-aware enough to realize that white crew team members from Choate and Exeter don’t need Jeff Sessions to make sure they get to sit at lunch counters.

While scholarly minds can ruminate all day on when and how affirmative action should be used, there’s a much more disturbing aspect to the administration’s choice to protect whites from the evils of racism. It’s the cases on which the DOJ has chosen not to focus. This administration has been clear that it is not interested in enforcing rules that allow fake for-profit “colleges” to swindle students (largely minority students, if anyone is keeping track) out of thousands in tuition money. Neither does the administration appear to be interested in enforcing Title IX on our campuses to help discrimination against LGBT students, or to protect students from sexual assault. Set against this backdrop of extreme apathy, our DOJ’s interest in making sure white people get to the front of the admissions line is not just concerning—it’s downright disgusting.

[Image via CNN screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos