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Why Florida schools might steer clear of trouble if Trump shakes up affirmative action

By Claire McNeill, Times Staff Writer
Published: August 3, 2017
Photo illustration. [Times files]

The Trump administration's potential shake-up of college admissions policies that consider an applicant's race likely wouldn't have much of an impact in Florida.

That's because schools in the Sunshine State haven't used race as a factor in admissions for almost two decades, dating back to Gov. Jeb Bush's controversial executive order in 1999.

"Trust me, there were a lot of people upset about this," Bush said in 2015 at the Conservative Political Action Conference, recalling his move to eliminate racial preference in admissions. He called the old, race-conscious system "discriminatory."

The Trump administration appears to agree.

An internal memo obtained by the New York Times indicates that the Justice Department is redirecting resources toward investigating and even suing universities it deems discriminatory — including against white applicants.


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The memo sought lawyers to work on a new effort targeting "intentional race-based discrimination." The Times cited supporters and critics alike who anticipated that the department could bring the hammer down on programs designed to benefit black and Hispanic students, who are generally less represented on college campuses.

Critics immediately denounced the memo as a sign the Justice Department was absconding its role in defending civil rights. The American Association of University Professors, for instance, defended programs that help minority students, citing federal data that showed no significant change in the gap between blacks and whites in college enrollment between 2003 and 2013.

On Tuesday, the Wall Street Journal linked the memo to the agency's plan to look into an affirmative-action complaint out of Harvard that claims the university discriminates against Asian-American applicants. A Justice Department official told the Journal there is no indication of a broad policy change, despite concerns, and that the agency "is committed to protecting all Americans from all forms of illegal race-based discrimination."

Florida already forbids public universities to consider the "race, color, national origin, disability, or sex" of its applicants, according to a directive from the state Board of Governors.

A handful of other states also disallow racially-conscious admissions, a hot topic that has recently attracted Supreme Court scrutiny. Last year, justices voted 4-3 to uphold such a program at the University of Texas at Austin. Several other lawsuits are pending at other top schools.

Florida lawmakers have instead looked at other factors, like socioeconomic status and educational history, to identify underserved students and create pipelines and programs to serve them.

"You'll never see race mentioned," said Mike Pierce, general counsel at New College in Sarasota. "They've found ways to serve a broader population without taking race into consideration."

Pierce said the Trump administration's spotlight would likely fall on large, prestigious schools where students have lodged complaints about unfair admissions, like Harvard — rather than Florida's universities.

"There really wouldn't be a reason for the Department of Justice to look if a state has already said, 'You're not allowed to consider this,'" he said.

For experts who have been following the complex and high-profile legal battles surrounding affirmative action, the Justice Department's move wasn't a shock. Even the Supreme Court justices who upheld the University of Texas policy wrote that the issue was far from resolved.

As for any impact in Florida, "it's a wait and see," said Peter Lake, a higher education law expert and professor at Stetson University College of Law. He said school officials are likely poring over their policies this week, making sure they haven't created any physical or implicit barriers along the lines of race.

"It's a little too early to tell what's going to come of this and how far it's going to go," he said. In the meantime, he said, universities would be wise to examine whether their campus has a culture of supporting minority students long after they've been accepted and enrolled.

To read more on this topic, check out PolitiFact's look at Gov. Bush's claim that eliminating affirmative action in admissions in Florida led to "more African American and Hispanic kids attending our university system" than before. Here's the takeaway.

Times news researcher Caryn Baird contributed to this report. Contact Claire McNeill at [email protected]