Former President Donald Trump and his campaign are promising to bring civil rights litigation against colleges and universities that have violated Title VI of the Civil Rights Act with racially discriminatory admissions policies that the Supreme Court struck down in June 2023.
In a May 2023 campaign video, prior to but likely anticipating the Supreme Court’s ruling, Trump warned, “I will direct the Department of Justice to pursue federal civil rights cases against schools that continue to engage in racial discrimination. And schools that persist in explicit unlawful discrimination under the guise of equity will not only have their endowment taxed, but through budget reconciliation, I will advance a measure to have them fined up to the entire amount of their endowment.”
On June 29, 2023, the Supreme Court affirmed Title VI of the Civil Rights Act, 42 U.S. Code § 2000d’s prohibition on racial discrimination in federally funded programs, including higher education, at both public and private universities, in the Students for Fair Admissions v. Harvard decision.
The law itself is clear: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
And the ruling by Chief Justice John Roberts was rather simple: “Eliminating racial discrimination means eliminating all of it,” adding, “Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause… Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”
With such a strong basis to move forward, the President of any party, whether a new Trump administration should he win election this year, or the current incumbent President Joe Biden, has a clear mandate to enforce Title VI of the Civil Rights Act against college and universities that were using racially discriminatory admissions programs, which were targeted against Whites and Asians in favor of Blacks and Hispanics.
But Biden isn’t talking about doing anything like that. Instead, in response to the Supreme Court’s ruling on June 29, 2023, Biden stated, “I’m directing the Department of Education to analyze what practices help build a more inclusive and diverse student bodies and what practices hold that back, practices like legacy admissions and other systems that expand privilege instead of opportunity. Colleges and universities should continue their commitment to support, retain, and graduate diverse students and classes.”
In other words, just keep doing what you’re doing.
In the campaign video, Trump also promised to usual the college accreditation system administered by the U.S. Department of Education to take down diversity, equity and inclusion (DEI) programs at colleges and universities, stating, “Our secret weapon will be the college accreditation system. It’s called accreditation for a reason. The accreditors are supposed to ensure that schools are not ripping off students and taxpayers, but they have failed totally. When I return to the White House, I will fire the radical Left accreditors that have allowed our colleges to become dominated by Marxist maniacs and lunatics. We will then accept applications for new accreditors who will impose real standards on colleges” including “protecting free speech, eliminating wasteful administrative positions that drive up costs incredibly, removing all Marxist diversity, equity, and inclusion bureaucrats…”
The crux will be simple, just like Harvard and the University of North Carolina, the Department of Education has to uphold and enforce Title VI of the Civil Rights Act and the Fourteenth Amendment to the Constitution in all of its rules and regulations. Therefore, new regulations that uphold the spirit of equal protection in Student for Fair Admissions v. Harvard by requiring equal protection and racially neutral admissions criteria could be well-grounded and could help to prevent future discrimination.
In addition, it remains to be seen, but the Supreme Court’s ruling on Title VI may also open up for reconsideration very similar discrimination that has been seen via Title VII employment based DEI racial and gender hiring quotas utilized by American corporations pursuing Environmental, Social and Governance investment strategies, but whose roots go back much further to the 1979 Steelworkers v. Weber ruling by the Supreme Court ruling that upheld reverse discrimination by employers. America First Legal led by Trump advisor Stephen Miller is already pursuing civil lawsuits against companies that hire, fire and promote based on race rather than merit.
But to truly stick may ultimately require an administration that is willing to enforce civil rights laws the way they are written and removing discrimination in all directions—something Trump is already looking into. It’s about time.
Robert Romano is the Vice President of Public Policy of Americans for Limited Government Foundation.
