The Trump administration is reversing the Obama-era directive promoting diverse classrooms by reinstating a policy that "strongly encourages the use of race-neutral methods" for admitting students to university programs or placement in elementary and secondary schools, The New York Times reports.
"The executive branch cannot circumvent Congress or the courts by creating guidance that goes beyond the law and — in some instances — stays on the books for decades," argued Justice Department spokesperson Devin O'Malley in a statement to CNN.
The policy shift, while not a formal law, means that schools that continue race-conscious admission policies could face an "investigation or lawsuit, or lose federal funding from the Education Department," The New York Times reports. The Trump administration says the shift is to follow the law more closely, although former Justice Department civil rights lawyer Samuel Bagenstos called it "part of a broader conservative effort to undermine affirmative action."
Supreme Court Justice Anthony Kennedy, who is retiring at the end of the month, was the swing vote on affirmative action in 2016's Fisher v. University of Texas at Austin, which decided that schools could consider race as one factor in their decision-making process. A new case expected to go to the Supreme Court, in which Asian-American students say they were refused admission to Harvard to give their spots to students of other races, would be decided theoretically by President Trump's replacement for Kennedy.