Editor’s note: This piece is coauthored by Elizabeth Slattery.

Top Democrats in Congress are pressuring the Justice and Education Departments to stop the administration’s plans to investigate and potentially sue universities that intentionally discriminate against applicants based on race. In their letter to Attorney General Jeff Sessions and Education Secretary Betsy DeVos, Sen. Dianne Feinstein (D-CA), Rep. John Conyers (D-MI), and others embrace the Alice in Wonderland worldview in which curtailing racial discrimination “would undermine civil rights protections.”

Earlier this month, The New York Times published an internal DOJ memo recruiting attorneys to work on this project. A Justice spokeswoman confirmed that the department is looking into allegations that some schools discriminate against Asian-American applicants. Asian-American organizations filed a discrimination complaint against Harvard and other universities in 2015, but President Obama’s Justice Department ignored that complaint.

In response, the Democrats decry “any” – any — “effort to limit universities’ ability to take students’ background, including their race, into account during the admissions process.” But when 130 Asian-American organizations asked the Education and Justice Departments to investigate Yale, Brown, and Dartmouth for race-based quotas that lock out well-qualified Asian-American applicants, they presented data showing that, on average, Asian Americans must have SAT scores 140 points higher than white students, 270 points higher than Hispanic students, and 450 points higher than black students to have a shot at admission to these schools. That is blatant, severe discrimination that should not be allowed to continue. 

Meanwhile, universities have become increasingly unwilling to admit how much they use race in admissions decisions. Yale and Stanford have been caught destroying their data. Princeton sued the federal government to prevent its data from becoming public.

The letter also questions the right of political appointees at DOJ, rather than career staff in the Educational Opportunities Section, to direct such an investigation, claiming that this “circumvent[s] DOJ operating procedures and career attorneys.” This is absurd. Political appointees inside the Justice Department have the legal responsibility and duty to carry out the priorities of the president in enforcing the law. The likely explanation is that Attorney General Sessions trusts his own people to conduct the investigation fairly and would rather not to leave the task to the department’s career staff, who are overwhelmingly liberal and thus predisposed to want racial preferences to continue in perpetuity. The leaking of a confidential memo to The New York Times (we suspect by a disgruntled career attorney) reinforces why Sessions was right to put his own team in charge.



What Sen. Feinstein, Rep. Conyers, and their colleagues see as an “abrupt and extremely troubling shift in policy” the American people see as common sense. A Gallup poll found last year that nearly two-thirds of Americans believe race and ethnicity have no place in college admissions. This should surprise no one. Our nation’s civil-rights laws and constitutional guarantee of equal protection were written to protect all people from unjust discrimination.

As Justice Clarence Thomas explained in his dissent from a recent Supreme Court decision, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.” The “‘faddish theor[y]’ that racial discrimination may produce ‘educational benefits’” does not change that constitutional command of equal protection.

The Justice Department should heed Justice Thomas’s admonition.

Republished from The Heritage Foundation.