By Sari Horwitz and Emma Brown
WASHINGTON – Justice Department officials are planning a new project to investigate and sue universities over affirmative action admissions policies they determine discriminate against white applicants, according to a U.S. government official.
The project will be based out of the department’s civil rights division, which is now looking for lawyers interested in working on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions,” according to a person familiar with an internal announcement in the civil rights division.
Officials said that the project will not be run out of the civil rights division’s Educational Opportunities Section where career Justice attorneys oversee cases on universities, but instead in the front office of the division. The project was first reported Tuesday night by the New York Times.
Justice Department spokeswoman Sarah Isgur Flores would not confirm the project and would only say “we don’t comment on personnel issues,” referring to the internal job position announcement.
A spokeswoman for the Education Department did not immediately respond late Tuesday night to inquiries about whether the agency would play a role in the effort to challenge affirmative action on college campuses.
But at least one key official has expressed skepticism of race-conscious admissions: Candice Jackson, acting head of the Education Department’s Office for Civil Rights, has written that such policies dismiss “the very real prices paid by individual people who end up injured by affirmative action.”
Two people familiar with the internal discussions at the Justice Department’s civil rights division said that the move came after career staffers who specialize in education issues refused to work on the project out of concerns it was contrary to the office’s long-running approach to civil rights in education opportunities. As a result, political leadership within the department decided to run the effort themselves, these people said.
“Yet again, the Sessions Justice Department, led by the political leadership and marginalizing the career employees, is changing course on a key civil rights issue,” Vanita Gupta, former head of the Justice Department’s civil rights division under President Obama, said in a statement to the Washington Post.
Gupta, who is now president of the Leadership Conference on Civil and Human Rights, called the new project “an affront to our values as a country and the very mission of the civil rights division.”
“Long-standing Supreme Court precedent has upheld the constitutionality and compelling state interest of these policies, and generations of Americans have benefited from richer, more inclusive institutions of higher education,” Gupta said.
Anurima Bhargava, a former Obama administration official, called the move a “scare tactic” meant to unnerve colleges and universities.
“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,” said Bhargava, who served as chief of the educational opportunities section of the civil rights division at the Justice Department.
The Supreme Court has ruled repeatedly that schools have a compelling interest in creating a diverse student body and may use race as one of multiple factors in admissions decisions. The court endorsed that view as recently as June 2016, ruling 4 to 3 that a race-conscious admissions policy at the University of Texas was constitutional.
But critics of affirmative action believe that the high court’s rulings have left an opening to challenge race-conscious policies, and cases are currently pending against Harvard and the University of North Carolina. Both cases allege that race-conscious admissions policies result in discrimination against Asian American applicants.