The Trump administration's Department of Justice is reportedly directing its civil rights division to probe and prosecute universities that practice affirmative action policies they deem to be racially discriminatory. It remains unclear which demographics the DOJ believes are being discriminated against, but critics of the potential move assert that it could be an overture to discouraging diversity on campus.
On Aug. 1, The New York Times obtained an internal DOJ document seeking to recruit lawyers for "investigations and possible litigation related to intentional race-based discrimination in college and university admissions."
The potential probes would not be run out of the DOJ's Educational Opportunities Section, which has historically handled projects related to universities, but out the the agency's civil rights division. It should be noted that the education section is staffed with career civil servants, while the civil rights division is staffed by political appointees.
DOJ spokesman Devin O'Malley declined to confirm or deny the alleged project, stating "The Department does not discuss personnel matters, so we'll decline to comment."
In 1961, former President John F. Kennedy coined the term affirmative action when he signed an executive order that called on the federal government to give special consideration to contractor applicants who belonged to historically disenfranchised race groups, according to The Week.
In 1965, former President Lyndon B. Johnson bolstered Kennedy's original order, stating "You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'You are free to compete with all the others,' and still justly believe you have been completely fair."
These executive orders set a precedent for higher education in the U.S. to make race a consideration when admitting applicants. Former President Ronald Reagan had pushed back on the policy, asserting that it undercut the American philosophy of meritocracy. In June 2016, the Supreme Court ruled by a 4-3 decision that universities should exercise affirmative action to ensure a diverse student body.
Former DOJ official Roger Clegg of the Reagan administration praised the potential of a Trump administration crackdown on affirmative action for university applicants.
"The civil rights laws were deliberately written to protect everyone from discrimination, and it is frequently the case that not only are whites discriminated against now, but frequently Asian-Americans are as well," Clegg said.
Meanwhile, critics of the potential project have accused the Trump administration of planning to undermine to DOJ mission of upholding civil rights.
"This is deeply disturbing," said Lawyers' Committee president Kristen Clarke of Civil Rights Under Law. "It would be a dog whistle that could invite a lot of chaos and unnecessarily create hysteria among colleges and universities who may fear that the government may come down on them for their efforts to maintain diversity on their campuses."
Former DOJ official Anurima Bhargava of the Obama administration shared Clarke's concern.
"The goal here is to drum up a bunch of fear and intimidate schools who are trying to provide a pipeline to leadership for all Americans," Bhargava told The Washington Post.
Adding further controversy to the potential project are long running accusations of racism against Attorney General Jeff Sessions. In 1986, a GOP-majority Senate Judiciary Committee denied Sessions judgeship because he had allegedly made a series of racist remarks while serving as the Alabama Attorney General, according to NPR.
Critics of the potential project have asserted that the DOJ would focus only on claims of racial discrimination against whites. An anonymous DOJ official deemed these concerns premature, noting that the internal document did not cite any particular race.
"Whenever there's a credible allegation of discrimination on the basis of race, the department should look into it," the DOJ official told Fox News.
In August 2015, a Gallup survey found that, while 58 percent of national adults supported affirmative action programs, there was a profound difference of opinion along party lines: 76 percent percent of Democrats and 55 percent of independents supported the policy, while only 38 percent of Republicans were also in favor.
On March 10, a PRRI survey also found a partisan split on how Americans viewed racial discrimination. While 82 percent of Democrats believed that African Americans faced a lot of discrimination, only 27 percent of Republicans agreed. Meanwhile, 43 percent of Republicans believed that whites faced a great deal of discrimination in America.