By forcing schools to open their books, it will be much more difficult for them to rely on application essays and obscure admissions criteria to ‘cover their tracks.’
P resident Trump’s new policy requiring federally funded universities to disclose more admissions data is an essential step in the ongoing fight against unlawful racial discrimination. After the Supreme Court issued its decision in Students for Fair Admissions (SFFA) v. Harvard, holding that race-based admissions policies violate the 14th Amendment and the Civil Rights Act of 1964, universities instantly sought ways to dodge the ruling.
Despite the clear directive from Chief Justice Roberts that universities cannot simply continue race-based admission policies through application essays and other workarounds, left-wing faculty recommended exactly that to evade SFFA. Professors Peter N. Salib and Guha Krishnamurthi argued in the Texas Law Review that universities can rely on “multifactorial, discretionary, and ultimately obscure criteria” to maintain affirmative action covertly. Schools can still select based on race, they said, so long as they “cover their tracks.” Professor Ediberto Roman likewise claimed that there are “loopholes” schools can exploit to continue race-based admissions.
And evidence indicates that schools persist in maintaining race-based admissions. Excellent investigative reporting by Ian Kingsbury at Do No Harm has revealed that, to this day, medical schools are blatantly discriminating based on race in their admissions and are encouraged to do so by their accreditors. Similarly, Caitlin Styrsky and Alison Somin at Pacific Legal Foundation found that, even after SFFA, the American Bar Association — the only federally approved accreditor of U.S. law schools — continued to pressure law schools into unlawful and discriminatory admissions standards using its power of accreditation.
This is why President Trump’s policy to expose such radical lawlessness is necessary despite cries from the left. The administration is trying to ensure that colleges and universities follow the law and eliminate discrimination. Drafted in broad strokes, the memorandum instructs the secretary of education to expand and enhance admissions data reporting, some of which is already required under Section 487(a)(17) of the Higher Education Act of 1965. Although the devil will be in the details of Secretary McMahon’s regulatory action and implementation, the memorandum is an important means to compel schools to comply with the Constitution’s demand for equal protection under the law. By forcing schools to open their books to the public, it will be much more difficult for them to rely on obscure admissions criteria to “cover their tracks,” and the data transparency will shed light on any discriminatory gimmicks. What Kingsbury, Styrsky, and Somin had to discover through intensive research and the burdensome Freedom of Information Act process, schools will be forced to publicize on the front end.
The move is also critical because, despite the Supreme Court’s clear constitutional pronouncements, the Court lacks effective means to ensure that universities follow the law or that lower courts implement SFFA correctly going forward. As noted, medical schools, law schools, and universities have been disregarding SFFA for two years. But even if victims of discrimination sue to enforce their rights, lower courts can water down or distinguish SFFA through dubious factual findings and narrow legal interpretations. One federal court already found that the U.S. Naval Academy can discriminate based on race, and another lower court refused to enjoin racial discrimination at West Point. The Supreme Court can, of course, take up and reverse cases that misapply its precedent, but often it lacks the appetite to simply correct lower court errors. Although the effects of those two post-SFFA decisions have essentially been rendered moot by Trump’s executive orders ending racial discrimination at the military academies, the march through the rest of academia continues. By requiring data admissions transparency, this new policy will help victims of discrimination develop a clear evidentiary record, which in turn will make it more difficult for lower courts to distinguish SFFA or to make findings that schools are not really discriminating, when in fact they are.
Trump’s new policy is part of his broader effort to increase transparency and accountability at American universities that are raking in billions of taxpayer dollars. In addition to opening admissions books, the administration has already taken steps to enforce Section 117 of the Higher Education Act of 1965, which requires reporting of gifts from foreign countries over a certain dollar value. That policy has been disregarded and circumvented for years, which has allowed invidious foreign actors to buy their way into universities and indoctrinate students with anti-American, anti-Western, and anti-Israel sentiment.
Trump’s actions are welcome developments. While the left will cry wolf that these policies threaten academic freedom and university independence, the White House’s directives do no such thing. They simply try to guarantee that all applicants are treated equally, without regard to their race. Students with stellar academic records are entitled to know why they aren’t getting into their dream schools. And taxpayers who fund these schools to the tune of tens of billions of dollars every year are entitled to know whether their money is paying for unconstitutional racial discrimination.
Mark Pinkert and David Johnson are partners at the law firm Holtzman Vogel. They work in Miami and Washington, D.C., respectively.